Housing: Retaliatory Eviction

Lord Williams of Elvel: asked Her Majesty's Government:
	What action they propose to take to address retaliatory eviction in the private rented sector for housing.

Baroness Andrews: My Lords, this Government firmly believe that tenants should be able to exercise their legitimate right to ask their landlord to carry out repairs to their property without fear of eviction. On 23 January, we announced an independent review of the private rented sector, which will look at security of tenure.

Lord Williams of Elvel: My Lords, I am grateful to my noble friend for that Answer, as far as it goes. Is she aware that I raised this matter 12 years ago from the opposition Front Bench? Private shorthold tenants can be expelled under Section 21 of the Housing Act 1988 because they ask for improvements to their property, even though under health and safety regulations they are entitled to do so. We have had 11 years of a Labour Government. Can my noble friend not do better?

Baroness Andrews: My Lords, I understand my noble friend's frustration; he has indeed championed the issue. I am absolutely sympathetic to those tenants who face what we call retaliatory eviction by unscrupulous landlords. The point was that the CAB did not come forward with this report until mid-year 2007, and we acted immediately. The then Minister, Yvette Cooper, was inspired to set up the review by Julie Rugg, because it enables us to look at the context of the issue. The CAB welcomed the review. We have to understand the scale of the problem. It is not at all clear how many people are affected. We also need to avoid unintended consequences. We need a thriving private rented sector and we need to keep good landlords in the market. That is why a systematic review is important. This is not about avoiding action; it is about getting it right.

Earl Cathcart: My Lords, I declare an interest as a landlord. I welcome the Minister's previous answer, but does she agree that the CAB recommendation to amend Section 21 of the Housing Act may well be to throw the baby out with the bathwater, especially as local authorities already have perfectly good existing powers to serve enforcement notices on owners to require them to remedy any serious repairs under the housing health and safety rating system?

Baroness Andrews: My Lords, the noble Earl is right. Local authorities have those powers and we want them to use them. Part of the problem that was identified in the report is that tenants are evicted before they get a chance to see the local authority taking action. That is why we need to look at the problem, but we need to do so in the context of the condition of the private rented sector as a whole, which, although it is getting better, is still not as good as it should be.

Lord Best: My Lords, does the Minister accept that those of us who are keen to see a growth in private renting have desisted from talking about regulation for the past 12 years or so because we have worried that investment might dry up? In light of the fact that some £120 billion has now swamped the buy-to-let market and there are now more than 500,000 private landlords of very variable quality, perhaps the time has now come for some regulation for this sector.

Baroness Andrews: My Lords, the point about rent and tenancy regulation is always to get the balance right between the rights of the landlord and the rights of the tenant. Since 1988 and the Housing Act, we have seen an increase in the private rented sector from 9 per cent to 12 per cent of the market, which is a good thing. Nevertheless, it is time that we looked conscientiously and comprehensively at this sector to see how it can be improved.

Lord Strabolgi: My Lords, does not retaliatory eviction by landlords constitute harassment, which is a criminal offence?

Baroness Andrews: My Lords, in certain circumstances that may be the case. However, the law is quite clear that Section 21 can be used after the assured tenancy has expired, as long as the notice is served correctly.

Baroness Hamwee: My Lords, does the Minister agree—I am sure that she will—that the CAB is to be congratulated on what is as ever a succinct and helpful report, which includes the comment:
	"Responsible landlords get no benefit from retaliatory evictions and accredited landlords have no need for them"?
	Does she also agree that lessons might be taken from employment law, where an employee cannot be dismissed for trying to enforce his statutory rights? Perhaps that example could be built on in this sector.

Baroness Andrews: My Lords, the CAB—particularly Debbie Crew, for whom I understand this was something of a personal crusade—is to be congratulated on the way in which this has been brought to our attention. The parallel with employment law and the law against unfair dismissal is not particularly helpful and we would be reluctant to pursue it. Again, however, Julie Rugg is looking at the whole thing and may well look at that as well.

Baroness Gardner of Parkes: My Lords, does the Minister remember the time when regulation was such—I declare an interest, having let property for 40 years or more—that no one was willing to let anything, and the Wilson Government imposed an absolute rent freeze, which did untold damage? Although I support the points made by the noble Lord, Lord Best, who is very well informed on this, we must be careful about what we do to ensure fairness to both parties.

Baroness Andrews: My Lords, it is in everyone's interests to get the balance right between the rights of the landlord and the rights of the tenant. That is certainly what we have been trying to do in recent years.

Lord Campbell-Savours: My Lords, are not many student tenants compromised into doing their own repairs? Is the tenant deposit scheme proving to be of any help in this area?

Baroness Andrews: My Lords, I am pleased to say that the tenant deposit scheme has been a huge success. In fact, it is exactly a year since we introduced it. One million deposits have been protected in that time, which means that £885 million of cash has been safeguarded by the scheme. Many of those tenants will be students. There are areas of the country in which students are congregated and it is worth saying that, although students bring enormous economic and social benefits to those areas, we are looking at what we might do with interested local authorities and universities to identify ways in which we can ease some of the pressures in those areas.

Lord Skelmersdale: My Lords, some of the tenants whom we are talking about will inevitably be on housing benefit. The noble Baroness will remember that the Government have a pilot scheme for removing or reducing housing benefit for those tenants who lose their occupancy because of anti-social behaviour. Can she update us on that?

Baroness Andrews: My Lords, I am afraid that I cannot. It is a good question, but I shall have to write to the noble Lord.

Agriculture: Pig Industry

Lord Hoyle: asked Her Majesty's Government:
	What steps they are taking to counter the difficulties facing the British pig industry following the steep rise in the costs of feedstock.

Lord Rooker: My Lords, we have supported the measures taken by the European Commission to increase feed grain supply to the EU market in respect of the current high prices. Various factors have been used for that, such as zero set-aside and the selling of intervention stocks. We have frequently made the point that it is in the supermarkets' and processors' own long-term interests to establish fair and sustainable arrangements for dealing with their suppliers. However, ultimately, the market will set the price.

Lord Hoyle: My Lords, I thank my noble friend for that very helpful reply. From what he has said, I am sure he is aware that, while feedstock prices have gone up by 50 per cent, the British pig producer is losing roughly £26 per finished pig. If that continues, there will not be a British industry to talk about. I noted that pork was on the luncheon menu in the Peers' Dining Room, which I hope came from a British source.
	I should like to ask my noble friend for help in two ways. First, he mentioned the supermarkets. Will he join the campaign to get better prices for UK pig producers and ensure that it is passed down and does not get stuck in the supply chain to the farmers? Secondly, with the highest animal welfare standards in the world, will the Minister do something about the unfair competition from importers who have nothing near our animal welfare standards?

Lord Rooker: My Lords, on the first part of my noble friend's question, he is absolutely right. If the supermarkets want to see the end of English pork production, they are going exactly the right way about it. We fully support the claims of the industry that it should get a fairer share of the price, but we cannot interfere on that. It is true that we have the highest welfare standards in the world. Some other countries in Europe—Sweden, the Netherlands and Germany—certainly have high standards. However, the real issue is that World Trade Organisation rules do not allow welfare standards to be raised as part of the deals, which we are pressing in the European Union to get on to the WTO agenda.

Lord Redesdale: My Lords, the Minister said that the Government can do nothing with the supermarkets because it is up to the market to bear the cost. However, as most of the pork sold comes through a very small number of supermarkets which have almost a monopoly on the sale of pork, is it not an issue that could be referred to the competition authorities? These supermarkets are keeping the price artificially low, which is affecting the industry. As the noble Lord, Lord Hoyle, pointed out, pork is on the menu in the Peers' Dining Room. It is from a rare breed, which will be the case for the whole of the British pig industry in the next three or four years.

Lord Rooker: My Lords, I regret that I have to hide behind the fact that the Competition Commission has an ongoing investigation, so it is inappropriate for me to comment. But the issues are very relevant.

Baroness Trumpington: My Lords, as the whole of the Danish economy is based on the sale of bacon, it seems to me, and as Denmark, too, has supermarkets, have we anything to learn from the Danes?

Lord Rooker: My Lords, we import an enormous amount of bacon, but about 55 per cent of our consumption is home produced. On the totality of pork, ham and bacon, as much of that is consumed as lamb and beef in this country, so consumption is large. But the Danes have also suffered from the high feed prices—they represent 60 per cent of production costs. As my noble friend Lord Hoyle said, everyone knows that they have gone up far more in the past year. These prices will work their way through to everyone.

Lord Soulsby of Swaffham Prior: My Lords, does the Minister agree that this is a problem not only for the pig industry, but also for the dairy and beef industry? It is in part due to the trend to move away from growing wheat and soya for animal feed to growing these crops for biofuels—especially in South American countries, such as Brazil—which is much more profitable. Have the Government any suggestions for what should be done about this in order to safeguard European Union producers?

Lord Rooker: My Lords, the growing of biofuels in the United Kingdom and the European Union is so tiny that it is not the cause of the high grain prices. We have had two poor summers which led to bad harvests, while the problems in Australia and the growth in consumption across Asia and China have been major factors. However, the noble Lord has raised another issue. We must make sure that biofuels do not replace food crops, which would result in the price of food going up.

Lord Brookman: My Lords, I share in the concerns about the pig industry, but what about me and other noble Lords who have been told not to eat our sausages in the morning?

Lord Rooker: My Lords, I am told that you are quite safe if you eat a basically healthy and balanced diet.

Lord Taylor of Holbeach: My Lords, does the Minister agree that it would help if consumers were encouraged to buy more British pig meat? The key to this is informing the consumer of the country of origin by ensuring that food labels demonstrate clearly that the products, processed or not, are made from British pigs, while meat from overseas sources and processed here cannot be labelled as British. When are the Government going to do something about country of origin labelling to this end?

Lord Rooker: My Lords, the fact is that the current position is very unsatisfactory. Labelling for food shows where the product underwent its last significant process as opposed to where the food was grown or reared. This is something we are dealing with through the European Union, and the Food Standards Agency is undertaking consultation on better labelling proposals. But what underlies the noble Lord's question is the need to get the message across to British consumers. We need to make it clear that extra costs on farmers are reflected in the price. That has got to be genuine information. So it is no good when we have what happened a week ago in the other place. The Leader of the Opposition chided the Prime Minister over the increase in the price of milk, but for the past 18 months Tory MPs have been queuing up at my office and demanding that I get more money to our dairy farmers. Doing that has had an effect on the price of milk, and the same argument applies to the price of meat.

Lord Livsey of Talgarth: My Lords, will the Minister consider the fact that, before the hike in grain feed prices, which has seen them double, the variable costs in the production of pig meat were working out at 80 per cent for feed? Is it not time that a ban was put in place on supermarkets selling product at less than the cost of production?

Lord Rooker: My Lords, it is a very unsatisfactory situation, but, as I have said, at the end of the day the market will decide. The Competition Commission is looking at these issues, and the Government have given as much support as they can to the industry in trying to get a fair deal. As I made clear in an earlier response, if the supermarkets want to see the end of English pork production, at the moment they are going the right way about it.

Banking: Credit Crunch

Lord Barnett: asked Her Majesty's Government:
	What discussions they have had with the Governor of the Bank of England regarding the global credit crunch.

Lord Davies of Oldham: My Lords, the Chancellor regularly meets the governor to discuss a range of issues. As was the case with previous Administrations, it is not the Government's practice to provide details of all such meetings.

Lord Barnett: My Lords, does my noble friend find it as incomprehensible as I do that major banks and clever bankers, who are the cause of much of the problem, have obviously been buying assets worth billions of pounds without checking them carefully? Will he therefore congratulate the governor on at least now being willing to consider the liquidity issues that are involved here—previously he was prepared to look only at inflation and nothing else? Is that because the Chancellor told the governor that under the Bank of England Act he has the power, which he should use, to look at issues other than inflation?

Lord Davies of Oldham: My Lords, I do not think that my noble friend is being quite fair to the governor and the Monetary Policy Committee by suggesting that inflation is the only issue they consider, although it is certainly very important that it is kept under control. My noble friend is absolutely right to note that of course the governor has concentrated on the question of liquidity for British institutions in circumstances where a whole range of resources has dried up internationally, but he will also appreciate that the governor has been concerned to ensure that those who caused the crisis should pay for the crisis, and not the British taxpayer.

Lord Forsyth of Drumlean: My Lords, could the quid pro quo for central banks providing enhanced liquidity to banks be that the banks themselves do more to strengthen their balance sheets by raising capital? What is the Government's position on that?

Lord Davies of Oldham: My Lords, the Government's position is to agree with the noble Lord, which he might find an exceptional occurrence. It is necessary that we see a significant change in bank balance sheets. A number of institutions left themselves very exposed to the developments that have occurred internationally in recent months. That exposure has cost institutions dear, but it has the potential to have a significant effect on the wider economy.

Lord Oakeshott of Seagrove Bay: My Lords, do the Government agree that if a bank is too big to be allowed to fail, it is also too big to be allowed to be taking billion-pound bets with taxpayers' money? It is high time that Britain's biggest banks stopped gambling and started banking again. Would not Mr Bob Diamond in particular, the boss of the Barclays casino, who is on £21 million a year, be happier working in Las Vegas rather than in London?

Lord Davies of Oldham: My Lords, the pouring of moral obloquy upon the various actors gives a great sense of self-satisfaction but does not produce any direct remedy to the position. It is important that banks recognise that, so far as the authorities are concerned, the banks will bear the costs of their misjudgments, but it is also important that we introduce the necessary regulation to ensure that banks are better placed to face such crises in future. As noble Lords will appreciate, the Government have impending legislation for regulation in these areas.

The Lord Bishop of Chester: My Lords, does the Minister agree that there may be remedy in the verse in the psalm that was read at Prayers, which says that we should not incline our hearts to covetousness? One of the lessons of this whole affair is that responsible borrowing and lending must be the foundation of any society, not least in relation to vulnerable groups and young people.

Lord Davies of Oldham: My Lords, the House will appreciate the sentiments expressed by the right reverend Prelate. Covetousness has perhaps outreached the banks and their ability to control the level of debts they were potentially incurring. However, we want to see that society's financial needs are transferred to these significant people in terms of proper responsible banking. The Government and this House will have to play their part with the appropriate legislation.

Baroness Noakes: My Lords, we have heard this week of Northern Rock's plans to create hundreds of thousands of mortgage orphans, First Direct has closed its doors to new mortgages and other banks have put their rates up. Do the Government have any policies to mitigate the impact of these factors on stressed borrowers?

Lord Davies of Oldham: My Lords, the Government assured small investors regarding banks right at the beginning. With regard to stressed borrowers, the important thing is that we get the situation with banks and building societies into some degree of order. A large number of our institutions are perfectly healthy and safe, although they face the problem of being able to get the resources in order to maintain their mortgage offers. Part of that, so far as the ordinary mortgage holder is concerned, is interest rates, which the Bank of England is concerned to control.

Taxation: Foreign Footballers

Lord Faulkner of Worcester: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as vice-chairman of the Cardiff Millennium Stadium.
	The Question was as follows:
	To ask Her Majesty's Government what are the arrangements for the tax treatment of foreign footballers playing in final matches in European competitions at stadiums within the United Kingdom; and what are the likely consequences of these arrangements for winning the rights to stage finals in the United Kingdom.

Lord Davies of Oldham: My Lords, the Government do not withhold tax from payments made by non-UK football clubs to their employees when they play for their club in team competitions in the United Kingdom. Non-resident footballers may be liable to UK tax on payments relating to games played in the UK and would have to complete a tax return for any UK tax liabilities arising. The legislation and its implementation have remained unchanged for many years.

Lord Faulkner of Worcester: My Lords, I thank my noble friend for that Answer. He will have seen press reports at the weekend that according to UEFA the Football Association's bid to stage the 2010 Champions League final at Wembley was dismissed for the reason that Her Majesty's Government, unlike the authorities in Germany and Spain, could not give an undertaking that the players taking part would not be subject to British taxation. As my noble friend knows, UEFA takes the view that they should be taxed only in their country of domicile. As the Government's position may have been misunderstood, would Ministers allow my noble friend Lord Triesman to get back in touch with Mr Platini and make it clear that we are anxious to see the 2011 Champions League final at Wembley and indeed the 2012 final at Cardiff? Will he ensure that no taxation issues stand in the way of that or of our staging other international events, such as the ICC's World Twenty 20 Cricket Cup in 2009?

Lord Davies of Oldham: My Lords, the Government are concerned to safeguard the interests of international sport in terms of its performance in the United Kingdom. But, of course, we did stage the European cup finals in 2002 and 2004 under the tax arrangements that are still in force and have obtained over the past two decades. It may be that UEFA has misunderstood the position, which has caused it to make this decision on 2010—but we note that it is leaving open the decision on where the final should take place in 2011. Wembley will undoubtedly be a key bidder. There is time for us to clear up this matter.

Lord Triesman: My Lords, I declare an interest as the chairman of the Football Association. I assure the House that the competition to stage the finals is very tough and that people make bids in that light. Will my noble friend the Minister give the House an explicit assurance that the Treasury and all government departments will at least match the terms on which European Governments enable their sports federations to make bids successfully for these events, including waiving tax? Can he confirm that the Treasury actually understands that that is the necessary condition for delivering the decade of great sport in the United Kingdom that we have been promised?

Lord Davies of Oldham: My Lords, I was aware that my noble friend was chair of the Football Association. I emphasise that we are at present pursuing a tax regime which has ensured in the past that these games have come to the United Kingdom. If there is a change in the situation, of course we will examine it with the greatest care, but the change seems to have occurred in other countries. This country has reciprocal bilateral arrangements with other countries, made on the basis of firm agreements. Therefore, we will have some work to do to identify the nature of UEFA's concern. In so far as UEFA expressed it in terms of Britain withholding tax with regard to matches played here, that is not so. UEFA is labouring under a misapprehension.

Lord Oakeshott of Seagrove Bay: My Lords, we all seem to be declaring interests today, so I should declare that I am an Arsenal season ticket holder and that my son works for the FA.
	As the noble Lord made clear, we have just lost the 2010 UEFA cup final to Hamburg, so we are one-nil down against the Germans, and the ref has now given us a chance to equalise. How long does it take the Treasury to pick up the phone to Mr Platini and make the position clear? Are the Government more worried about having state visits at Arsenal rather than football finals?

Lord Davies of Oldham: My Lords, I think that the country appreciated that Arsenal was the host for part of the state visit last week, and I say that as a Tottenham Hotspur supporter. However, let me make it quite clear to the noble Lord: the Treasury has been taken aback by UEFA's contention that we intended to do something that the Treasury has no intention of doing and has no legal authority to do: to withhold taxation. If there are other grounds that exercise UEFA in these terms that we need to address of course we will, because we are concerned that international events should come to Britain against a background where the greatest event of all, the Olympic Games, is coming in 2012.

Lord Lawson of Blaby: My Lords, is the problem not that taxes in this country are too high for professional footballers but that they are too high for everyone?

Lord Davies of Oldham: My Lords, I knew that the noble Lord would express sympathy for professional footballers on £180,000 a week or more. However, the British taxation regime has been in place, under a Labour Administration, for a decade and more, and we have held these matches in this country over that decade. The noble Lord must recognise that the Government have an issue to resolve with UEFA in its recent action.

Baroness Noakes: My Lords, I declare no interest at all in football—

Lord Stoddart of Swindon: My Lords, is the noble Lord aware that many people in this country are far more concerned about the taxation arrangements for poor people who have been hurt by the withdrawal of the 10 per cent rate than about well paid footballers from foreign lands?

Lord Davies of Oldham: My Lords, I am not always able to agree with the noble Lord, particularly in a week in which we are discussing European legislation, but I am in wholehearted agreement with the sentiment that he just expressed.

Business

Baroness Royall of Blaisdon: My Lords, given the late start on Wednesdays and the weight of today's business, the Statement by my right honourable friend the Foreign Secretary on Zimbabwe will not be repeated in this House today. The usual channels are planning that the Statement will be repeated tomorrow, the weight of other business permitting. It is envisaged that it will be taken between the two balloted debates.

Borough Freedom Bill [HL]

Lord Graham of Edmonton: My Lords, I beg to introduce a Bill to enable rights of admission to the freedom of cities or towns to be extended to women; to enable other amendments relating to admission to be made; to confer powers to admit persons as honorary freemen of certain places in the Confederation of the Cinque Ports; and for connected purposes. I beg to move that this Bill be now read a First Time.
	Moved accordingly, and, on Question, Bill read a first time, and ordered to be printed.

Marine Bill (Draft): Joint Committee

Baroness Ashton of Upholland: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on any draft Marine Bill presented to both Houses by a Minister of the Crown.—(Baroness Ashton of Upholland.)
	On Question, Motion agreed to; and a message was sent to the Commons.

Criminal Justice and Immigration Bill

Lord Hunt of Kings Heath: My Lords, I beg to move that the Bill be now further considered on Report.

Moved accordingly, and, on Question, Motion agreed to.
	Clause 9 [Purposes etc. of sentencing: offenders aged under 18]:

Lord Hunt of Kings Heath: moved Amendment No. 36:
	Clause 9, page 7, leave out lines 1 to 9 and insert—
	"(2) The court must have regard to—
	(a) the principal aim of the youth justice system (which is to prevent offending (or re-offending) by persons aged under 18: see section 37(1) of the Crime and Disorder Act 1998),(b) in accordance with section 44 of the Children and Young Persons Act 1933, the welfare of the offender, and(c) the purposes of sentencing mentioned in subsection (4) (so far as it is not required to do so by paragraph (a))."

Lord Hunt of Kings Heath: My Lords, we have had substantial and helpful debate, both in this House and in another place, on Clause 9, which sets out the purposes of sentencing for under-18s. The debate on Clause 9 has encapsulated much of our informed debate about the purpose and outcome of the youth justice system as a whole. Clause 9 is designed to clarify the current law and to remove a potential source of confusion for sentencers. It has been strongly welcomed by the Youth Justice Board and the Magistrates' Association. It will, of course, underpin and inform the new community sentencing structure with its emphasis on rehabilitation and tailored interventions. It is very important that we get this clause right.
	As drafted, the Bill states that when sentencing a young person the court must have regard primarily to the principal aim of the youth justice system, which is to prevent offending or reoffending by persons under the age of 18. The court should also have regard to the purposes of sentencing, as set out in subsection (4), and to the welfare of the offender in accordance with Section 44 of the Children and Young Persons Act 1933. Many noble Lords took the opportunity to speak to this clause in Committee and some expressed concerns that a hierarchy was built into it. Many felt that the welfare of the child was subordinate in the clause, a point that the Joint Committee on Human Rights made explicitly.
	We have listened carefully to noble Lords; the group of amendments that I have tabled reflects that fact. We believe that our amendments are compatible with our international obligations under Article 3 of the United Nations Convention on the Rights of the Child. The amendments will, I hope, remove any argument about a hierarchy within the purposes of sentencing. Essentially, the court will have to have equal regard to the principal aim of the youth justice system, the welfare of the young person and the purposes of sentencing. I believe that the amendments clarify the position. I hope that they will reassure noble Lords that we do not believe that the welfare of the child should be a subordinate consideration. I am happy to make it clear that the welfare of the offender is a primary consideration and must be considered by the court as such. I beg to move.

Lord Thomas of Gresford: My Lords, Amendment No. 47 is grouped with these government amendments. I thank the Minister for listening to the various submissions made on this matter in Committee and for taking some steps towards removing the hierarchy to which he referred. However, in the classic terms of old Liberal assemblies, it does not go far enough. Consequently we are taking this opportunity in Amendment No. 47 to amend the principles of the youth justice system as set out in Section 37 of the Crime and Disorder Act 1998.
	Your Lordships will observe that government Amendment No. 36 refers to,
	"the principal aim of the youth justice system",
	as set out in Section 37(1) of the Crime and Disorder Act 1998. However, we urge your Lordships to consider that that Act was passed in 1998 and that matters in relation to youth offenders have moved on considerably since then.
	Article 3 of the United Nations Convention on the Rights of the Child states that,
	"the best interests of the child shall be a primary consideration".
	In domestic law, the Children Act 1989 establishes that decisions taken by the family court, dealing with a whole range of children's issues, must be taken in the child's best interests through the use of the welfare checklist. The 1998 Act was something of an exception. Not only did it address solely children who offend, but it stressed that the primary aim, to which I referred, is the prevention of offending above all other considerations.
	There is an American film called "Parenthood", which I urge all those interested in youth justice to see. It contains a sentence that I always regard with some affection. When a child is born and the new baby is presented to the mother and father, the father, Steve Martin, looks at the mother and says: "What a wonderful gift this child is, and so far we have done nothing to harm it". That encapsulates in my mind where an awful lot of the problems that bring young people before the courts start. Maltreatment leads to offending behaviour. Children who offend grow up in an environment of poor parental supervision with a lack of discipline or with harsh and erratic parenting.
	At earlier stages of the Bill, we talked about the role models that lead children to go astray. Children who offend have an increased likelihood of living in poor housing and experiencing family conflict. Their role models are their parents and grandparents but these families have a history of anti-social behaviour.
	In young offender institutions within the prison system, children are treated as prisoners. They are confined. The staff are generally trained as though they were prison officers. Although it is suggested that courses should be offered, the atmosphere is that of a prison and not of a place where children can be persuaded to change their offending behaviour and to discuss problems or difficulties that they may have with safe and trusted adults.
	In its recent report on the use of restraint in secure training centres, the Joint Committee on Human Rights said about the treatment of children in custody:
	"The United Nations Convention on the Rights of the Child 1989 ... ratified by the UK in 1991, emphasizes a recognition of the dignity and worth of children. In the context of detained children and young people, this principle is vital to the rehabilitation of the child and to his or her ability to be an effective citizen when released. However, law and practice in the UK relating to children and young people in detention calls into question the Government's commitment to that principle".
	Two government departments are particularly concerned with young people in trouble: that for children, schools and young people—I forget the precise name of the department, but it is something like that.

Lord Hunt of Kings Heath: My Lords, I think that the noble Lord has missed out the word "families".

Lord Thomas of Gresford: My Lords, I am much obliged. That government department deals with young people in trouble, as does the Home Office. In December 2007, a few months ago—

Lord Hunt of Kings Heath: My Lords, in his interesting speech, the noble Lord has missed out my own department, the Ministry of Justice.

Lord Thomas of Gresford: My Lords, these government changes happen with such frequency, not to mention the personnel involved, that it is difficult to keep up.
	The Children's Plan, published in December 2007 by the Department for Children, Schools and Families, acknowledges that the current system is in need of fundamental reform. This is the Government's own paper. It states that,
	"more effective action is called for by children's services and youth justice agencies to reduce youth crime through a reformed approach to youth justice that has a stronger emphasis on prevention, rehabilitation and action to stop repeat offences by young people".
	We want a complete change in youth justice policy so that we do not treat children in the same way as we treat adults; that is, by locking them up to prevent offending and reoffending. We want the recommendations in the Children's Plan to be followed. We submit that the signal given by our amendment is important—that the principal aim of the youth justice system is to promote the welfare of children and in so doing to have particular regard to the need to prevent offending, including reoffending. In other words, we wish to shift the balance and the emphasis from punishment to rehabilitation—to putting children on the correct road.
	While we welcome the steps that the Government have taken in their amendment and we are grateful to the Minister for listening, we believe that we have to go further. This is not the end by any means. In due course, I shall move Amendment No. 47 in place of the government amendment.

Baroness Butler-Sloss: My Lords, I congratulate the Government on a considerable move forward in their Amendment No. 36. The amendment of the Liberal Democrats, Amendment No. 47, would be even better; none the less, I recognise the great improvement in Amendment No. 36. I refer to one element of it. Proposed subsection (2)(b) refers to the Children and Young Persons Act 1933 and uses the word "welfare". It is about time that "welfare" was updated to be relevant to 2008. Section 1(1) of the Children Act 1989 specifies that the welfare of the child is paramount, as the noble Lord, Lord Thomas of Gresford, said, but it is interesting that Section 1(3) also provides a checklist on the way in which "welfare" is to be understood by judges and magistrates in the family courts. I am not suggesting that every item on that checklist would be appropriate for young offenders, but some would be. One of them is, for example,
	"his physical, emotional and educational needs".
	The Government should, not necessarily in primary legislation—and I appreciate that I have not put down an amendment—but somewhere, provide something similar to the checklist in the Children Act to guide magistrates, in particular, and judges on how they should interpret "welfare", whether that is done under Amendment No. 36 or Amendment No. 47. We would then know what welfare really means and give it the prominence and significance that it should have. It must not just be a word, but have real meaning. Somewhere that meaning should be elucidated, so that judges and magistrates can use and rely on it when considering sentencing.

Lord Elystan-Morgan: My Lords, I associate myself wholeheartedly with everything said so clearly and so powerfully by the noble and learned Baroness, Lady Butler-Sloss. I suppose that the Children and Young Persons Act 1933, rather than the Children and Young Persons Act 1969 or the Children Act 1989, was selected because what is left of the 1933 Act is essentially criminal statute. The submission of the noble and learned Baroness is extremely powerful. The concept of the welfare of a child is indivisible. There is nothing wrong in taking a term out of what is essentially a civil statute—the 1989 Act. For those reasons, very respectfully, I completely support what has been said.

Baroness Stern: My Lords, I, too, am grateful to the Minister for tabling his amendment. I, too, feel that it does not go far enough and I am also grateful to the noble and learned Baroness, Lady Butler-Sloss, for her contribution. Her contribution to all our discussions, given her background in the Family Court, has been invaluable and has given us an insight into how far the criminal justice part of dealing with children has moved away from the mainstream.
	I want to speak, in particular, to Amendments Nos. 37 and 40 in my name and those of the noble Earl, Lord Onslow, and others, and I am grateful to them for adding their names. The noble Earl, Lord Onslow, and I tabled these amendments as a result of the study of the Bill by the Joint Committee on Human Rights, of which we are both members. In his absence, I shall briefly try to do justice to our argument once more.
	The UN Convention on the Rights of the Child, to which we are party, says that in all measures imposed on children, the best interests of the child shall be paramount. The point of stating that in the convention is that children are different from adults. They are vulnerable, are not yet developmentally formed and are growing up, so we protect them. They are not allowed to marry until a certain age, go to war or drink. In its simplest form, that article in the convention applies also to the way in which we deal with those who have broken the law, are deemed to have broken the law or have done damage and harm to others. Nothing whatever anywhere in the convention suggests that a child puts him or herself beyond its terms by having been charged with a criminal offence, and in no country in the world does anyone claim that.
	Therefore, the system for dealing with under-18s should be different because it should be shaped by those ideas. One way in which it should be different is by imposing measures that look to solutions to the problem—solutions that aid the development of the child to grow up into a law-abiding adult.
	I am very grateful to the Minister for the Answer that he gave me yesterday to a Written Question. I must admit that I was astonished by the Answer. I was astonished, first, by the information in it and then I was astonished—and, indeed, ashamed—that I was not already aware of that information. I asked the Minister how many people under 18 were serving indeterminate sentences for public protection and the age of those people. Noble Lords may, or may not, be as surprised as I was to hear that 48 people under the age of 18 are serving indeterminate sentences for public protection and that, of these, 17 are aged 15.
	Since the sentence has been available, of those under 18 sentenced to an indeterminate sentence for public protection, five have had a tariff of one year or less and 56 have had a tariff of one to two years. Therefore, I make the assumption—I hope, rightly—that their offences were not murder, rape and so on or offences that threatened life, as there are other provisions in the law under which they would have been sentenced for such crimes.
	As of 31 January this year, not one of those 48 children had been released. That seems to be a very good example of why there must be a system of youth justice that puts the welfare of the child as the first priority. If we had such a system, I think that serious questions would be asked about the appropriateness of indeterminate sentences for public protection for 15 year-olds.
	I want to end with an example. This morning, I chaired a meeting organised by INQUEST to launch a publication about women who die in prison. One of the speakers was Kirsty Blanksby. Kirsty was one of two sisters who came from a troubled background and caused a lot of trouble when she was a child. She got into the mental health system, went to a therapeutic community and there she was, sitting on the podium in Committee Room 9 this morning, addressing a meeting in the Houses of Parliament—a very fine, articulate young woman. Her sister Petra, in the same situation, got into the justice system. Kirsty is living a normal, full life; Petra is dead. She killed herself in New Hall prison just as she reached the age of 19.
	I use that example to make the point again that putting the welfare of the child first is also putting the welfare of society first. Solving Kirsty's problems was worth it for her and for us. I support the amendments.

The Lord Bishop of Chester: My Lords, I agree with everything that has been said so far. I want to pick up on what the noble Baroness, Lady Stern, was saying. The figures for youth suicide in this country are an absolute scandal. The number of young people who commit suicide every year is equivalent to the numbers in a secondary school.
	I prefer Amendment No. 47 to the earlier amendment as it shifts the balance towards responding to the many problems encountered by young people in our society which derive, one way or another, from a lack of love in childhood. That is the root of the problem, and the chaos in family life these days in our society feeds that. We see that from the news this morning about Shannon in Yorkshire and the family circumstances from which she has come. Also, the prevalence of child pornography in the news this morning illustrates the underlying culture that we face. As a bishop, I visit youth offending institutions and it is often chilling to see the way in which they operate. Young people are regularly sworn at—I could give more details. We need a change of culture in our approach to youth justice. I am grateful to the Minister for the move that he has indicated in his introduction to this government amendment, but I believe that Amendment No. 47 points us in a better direction.

Lord Judd: My Lords, it would be unfortunate if my noble friend were to feel that he was being congratulated only by those on other Benches rather than from his own. I congratulate him very warmly on having introduced the amendment and I qualify my warm congratulations only by saying that the glass of enlightenment still is far from full—it seems slowly, drip by drip, to be filling rather than emptying—as my noble friend and his colleagues come to grips with some of the problems that we have discussed on this amendment and similar amendments.
	I have two observations to make about the text of the amendment. There have been various references to the UN convention, our obligations to children and the importance of recognising that in our legislation. The amendment is significant because it talks not about "children" but about the "offender". That is immensely significant because it leads on to suggest that we must move towards tailor-made systems that really examine the predicament and situation of the individual child caught up in what has happened and what he has caused to happen. We must see what will enable a child to become a rehabilitated, positive and creatively participating member of society, taking a responsible role in society.
	Whenever we talk about welfare we need to expand that to spell out what we really mean because welfare could be a matter of protecting a child. I believe that the convention and any enlightened approach to these matters suggest that we must have a policy which is far more imaginative than simply looking at welfare. We need to look at the rehabilitation of the individual concerned.
	I hope that my noble friend will forgive me for making those points, but within the context I thank him for having brought the amendments, because they help us to create a dynamic for moving forward. As we move forward, I wonder whether we shall more frequently look at what is happening north of the border in Scotland. I am impressed that, for 40 years, they have had working rather successfully in Scotland the panel hearing system, which looks not only at the particular individual offence of which the child is accused, but the whole situation of the child, of which the offence is a part, and what will be appropriate for helping to put things right.
	It is true that that has so far operated only for children up to 16, but as I understand it, active consideration in Scotland is being given to the possibility of extending it to 18. I hope that, as we all consider the future, we are not too proud south of the border to learn from those who seem to be having some success in these respects north of it.

Lord Ramsbotham: My Lords, I, too, thank the Minister for bringing forward the amendment, but, like other noble Lords, I have some reservations about its wording. I was interested to hear him mention the aim of the youth justice system. As a former soldier, I was brought up to believe that an aim must be absolutely clear and unequivocal, and give clear direction to all those who have to follow it. Unfortunately, the aim here is not clear, because it confuses preventing "offending" with preventing "reoffending", which are not the same thing.
	Given that the Act from which the provision was taken dates from 1998 reminded me of the anticipation with which we awaited the arrival of this Government following the statement of Mr Blair that he was going to be tough on crime and tough on the causes of crime. Appreciating that the causes of crime were in society, we hoped that that would mean a bringing of society into the resolution of the causes and therefore the prevention of crime. Soon after that, the new Government realised that the criminal justice system—the police, the courts, prisons and probation—were in a mess; they were not a united system; they represented rather more four warring tribes competing with other for ever-diminishing resources rather than realising that their efforts, if aggregated, could produce a better solution that was much more geared to protecting the public than if they continued separately. So, very wisely, the Government gave them a uniting aim, which was to protect the public by preventing crime. I have no argument with this sentiment, but the word "prevent" is wrong in this context, because the criminal justice system does not click in until after a crime has been committed. That is not to say that there are not certain activities of the police which are geared towards crime prevention, but the criminal justice system, the investigation of the crime by the police, the sentencing and then the administration of the sentence by the prison and probation services are all about preventing reoffending, which is not the same thing at all. I notice that this aim for the youth justice system was given to it at exactly the same time. All that one has done is cross out the word "criminal justice system" and put "youth justice system" and given it the same aim: preventing reoffending.
	At the same time, I was looking at the aim of the Prison Service, which is,
	"to keep securely those committed by the courts, to treat them with humanity and to help them to lead useful and law-abiding lives".
	Here my background as a soldier came into play and I realised that there was not one aim in that but three, and you cannot have three aims. Security is put first, which is why security seems to run everything. In fact, if we are talking about preventing reoffending, helping people to live useful and law-abiding lives should come first, with the qualification that they must not be allowed to escape and must be treated with humanity. My noble friend Lady Stern and the noble Lord, Lord Judd, made the point that what is missing from that aim is that it should be in the interests of the child. Saying that the aim of the youth justice system is to prevent offending, which it is not, is missing that the aim of the system is to help young people to live useful and law-abiding lives and to rehabilitate them using methods that are appropriate to them as children. I hoped that, after listening to us, the general spirit of making children count would have been reflected in revised aims and principles for the youth justice system that would be put in the Bill.

Lord Mayhew of Twysden: My Lords, we have just listened to a very profound contribution, and I cannot sensibly add to it. Alone among those who have contributed to the debate, I shall look in a little more detail at the new clause inserted by Amendment No. 47, which has been tabled by the noble Lord, Lord Thomas of Gresford. As I understand it at the moment, I do not share the general view that it would be better than government Amendment No. 36, which I welcome. I do not know how the court, seeking to follow the guidance that it gives, could be expected to understand what it is supposed to do. The new clause states:
	"It shall be the principal aim of the youth justice system to promote the welfare of children and in so doing—
	which seems to me to be a syntactical infelicity—
	"have particular regard to the need to prevent offending (including reoffending).".
	What should the court gain from the word "particular"? Is it intentional that there is no reference to the reform and rehabilitation of offenders, the protection of the public or the making of reparation by offenders to persons affected by their offences? All those are to be found in Clause 9(4). The new clause proposed would be a source of confusion for a court, and I genuinely look forward to hearing what the noble Lord will say about that to dispel my confusion, if he winds up on his proposed new clause.

Baroness Howe of Idlicote: I, too, thank the Minister for his well intentioned and well received attempts to meet the concerns expressed by a number of noble Lords. Despite what I heard from the noble and learned Lord, Lord Mayhew, I still feel that the phrasing of Amendment No. 47 better reflects what one would like to see happening than the amendment tabled by the Government. Taking the point made by the noble Lord, Lord Judd, we are still talking about children and young people. The main aim is that they are treated as such, whether we are thinking about prevention, paying back to society or whatever. They come from the most deprived backgrounds, whether they have been subjected to ill treatment or just to inadequate treatment and parenting. It was, above all, the comments made by my noble friend Lady Stern that made one concentrate on this issue.
	The very fact that that huge number of children, some as young as 13 or 15, should be serving indeterminate sentences, which may be short in theory but are likely to continue for a considerable time, is horrifying. We also know from reports by the Chief Inspector of Prisons about growing concern about self-harming. In 2004-05, there were approximately 25 incidents per week of children self-harming. That is not sensible; it is not the right way to be dealing with children and young persons, so I hope that we can look at this again.

Baroness Warnock: My Lords, I had not intended to intervene, but I support very strongly what my noble friend Lord Ramsbotham said about the confusion in the statement of aims contained in Amendment No. 36. The more one thinks about it, the more one realises how confused that statement is. I am sure that it could easily be put right, but it is of the greatest importance that we should know exactly the aim of the youth justice system and not confuse those two very different things: offending and reoffending.

Lord Neill of Bladen: My Lords, perhaps I may add just a note to what has been said. I was very moved by the contribution of the noble Baroness, Lady Stern, and the story that she told of the two sisters, and by the reference of the right reverend Prelate to the lack of love. Rehabilitation and help for children should be the dominant features of any measures that we introduce. The degree to which children are affected by the absence of love is dramatic. We must all have seen it in our own lives: a family in which love appears to be absent.
	I turned on the "Today" programme as I drove in today and heard about internet communications between very young children who are putting in the public arena information about how they live, what they look like, and so on. The plea is being made that parents should intervene to protect the children. We have the desperate situation of unloved children in houses and households where there is no room. There is no table at which anyone ever has a meal; and there is never a collective meal. The degree of deprivation is so intense. We ought to be aware of that all the time as we think of the people we are dealing with—these miserable, unfortunate children aged 15, languishing in some prison with an indeterminate sentence. What is their background? What terrible upbringing have they had to lead to that?

Lord Kingsland: My Lords, in considering these clauses in Committee, your Lordships will have heard one of the most distinguished debates that has ever taken place in your Lordships' House, greatly enriching the pages of Hansard. It is a testimony to the self-discipline of all your Lordships this afternoon that your Lordships have restrained yourselves from repeating all those matters, but have taken them as a backcloth to the observations made on the amendments today.
	What underlay those debates was the concern about the failure to give welfare its proper weight in the youth justice system. We know, to some extent, why that happened. Following Section 44 of the 1933 Act—a remarkable achievement for all those years ago—and then our international commitments to the United Nations convention, we had this curious clause in the 1998 Act, which seemed to retrace our steps all the way back to the 1920s and before. Ever since then, we have been striving to work our way back. The victim of all this has been the welfare of the child.
	One has seen this outlined in so many ways. We have seen how children in trouble with the law are much more likely to have grown up in an environment of poor parental supervision and a lack of discipline—a factor that has been virtually ignored by the law in the past 10 years. We have seen how there are all too few opportunities for children in custody to get the kind of rehabilitation that they need in order to re-enter the world with a reasonable chance of not reoffending. I particularly remember the graphic incidents described by the noble Baroness, Lady Falkner, in which there have been serious breaches of human rights in young offender institutions.
	This balance desperately needs to be redressed, which is what the three non-government amendments are about. I congratulate the noble and learned Baroness, Lady Butler-Sloss, as so many other noble Lords have done, on saying right at the beginning how pleased she was that the Government have moved on this matter. If I may say with great respect to the Minister, there was no doubt that the text in the Bill simply did not conform to our international obligations, and I am delighted to see that the noble Lord has come up with a text which is a substantial improvement to what was in the original Bill.
	We are presented with three different texts, which all have their merits. The great merit of Amendment No. 47 in the name of the noble Lord, Lord Thomas of Gresford, is that he confronts Section 37 of the Crime and Disorder Act 1998 head on in a way that none of the other amendments does. That is extremely attractive because the law began to go wrong following our United Nations commitments. It is therefore right that it should be confronted.
	I share the concerns expressed my noble and learned friend Lord Mayhew of Twysden about proposed subsection (2) in Amendment No. 47, but my biggest hesitation about the amendment, which I do not have about either of the other two, is that it is not clear who should promote the welfare of the child under the amendment. Under Amendments No. 36 and 37, it is quite plain that the duty to protect the welfare of the child is on the court. The best that one can say about Amendment No. 47 is that the duty is on the system, but which part of the system will be responsible? I suppose the noble Lord, Lord Thomas of Gresford, will say that all parts of the system will be responsible, from the prosecution all the way to the moment when the child finally walks free from whatever institution in which he or she has been incarcerated. I say that not because I in any way question the spirit behind the amendment. Anyone listening to the noble Lord can be in no doubt whatever that he is coming at this problem from exactly the same place that I do; but as your Lordships will have to make up your minds this afternoon about what to do about the amendments, those, for what they are worth, are my hesitations about Amendment No. 47.
	Amendment No. 37, in the names of my noble friend Lord Onslow, the noble Baroness, Lady Stern, and the noble Lords, Lord Judd and Lord Ramsbotham, has many attractions. It would place responsibility squarely on the shoulders of the court, which must be right. The only real distinction between Amendments Nos. 36 and 37 is one of emphasis.
	When thinking about this, I have been in some considerable difficulty. The emphasis in Amendment No. 37 is much more strongly on the welfare of the offender than on the need to have regard to preventing offending or reoffending. I think that the noble Lord, Lord Ramsbotham, would agree that some of the criticisms that he made about offending and reoffending in Amendment No. 36 also apply to Amendment No. 37. The principal distinction between Amendments Nos. 36 and 37 is the weighting. The Government just get over the hurdle in Amendment No. 36. I am not very happy about the principal aim, but I have to confess that the court must have regard to the three factors equally. It is clear that the shackles that so heavily anchored welfare in the text of the Bill have been successfully unlocked.

Lord Thomas of Gresford: My Lords, the noble Lord has in his remarks pointed the way to the difference between Amendments Nos. 36 and 47. In Amendment No. 36, the court is the sentencing court. The principal aim of the youth justice system is a broad aim that affects every agency dealing with young offenders. I am sure that he would agree with that, as he has already pointed the way towards it.

Lord Kingsland: My Lords, I hope that in making my observations about the noble Lord's amendment I paid due tribute to the spirit that lay behind it. We are dealing with a sentencing system. Although welfare should infect every part of the youth justice system, for the purposes of this Bill the crucial institution is the court. Therefore, the judges must be absolutely clear what obligations lie on their shoulders, which is why I made my observations about the importance of having someone specific. I am sure, again, that the noble Lord, Lord Ramsbotham, with his experience in another existence, would agree that personal responsibility above all is central. I believe that it is central that the Bill, because it is about sentencing, points to the sentencing authority, which is what Amendments Nos. 36 and 37 do.
	My other concern about Clause 9 lies in the purposes subsection. As I think I observed in Committee, there is nothing to distinguish the purposes of sentencing under Clause 9, which are referred to in proposed new subsection (2)(c), from the purposes of sentencing adults. I do not know whether at this stage the Minister would care to look at that again, but it underlies many of the observations made by many of your Lordships. I pick out again the noble Baroness, Lady Stern, only because, in Committee, she led the debate on this issue. Time and again, she has been at pains to say that children are different from adults. Therefore, it is very difficult to talk about the purposes of sentencing for children in a way that is identical to the purposes of sentencing for adults. I would very much like the Minister to say something about that.
	Having made those observations, I should like once again to congratulate the Minister on making—given the rhetoric of the Government in another place—a remarkable advance in sympathetic thinking on this most important matter of all in our justice system.

Lord Hunt of Kings Heath: My Lords, I echo the noble Lord, Lord Kingsland, by acknowledging the quality of debate both in Committee and today in reflecting on our discussions and taking the argument forward. We are clear on the considerations that will now come to your Lordships' House if these amendments are put to the vote. I also thank particularly the noble Lord, Lord Thomas of Gresford, for his generous welcome for the government amendment, although clearly he thinks that it does not go far enough; nevertheless, his welcome is appreciated. I have not seen the film "Parenthood", although it sounds interesting. Those of us who are parents can always learn more. The use of the phrase "do no harm" reminds me of the injunction made by Florence Nightingale to the health service: "First, do no harm". I suggest that that is not a bad principle for many public services.
	I accept that we are talking about those who are in many cases very troubled young people. As the noble Lord, Lord Neill, and other noble Lords graphically illustrated, their lives are often wretched, short of love, deprived and open to many temptations. The internet was mentioned. I agree strongly with the sentiments expressed, especially in relation to extreme pornography, which we shall debate later. Equally, it is remarkable how many young people from such backgrounds do not enter a life of crime. In our consideration of these matters, we have to ensure that the system as a whole reflects this fact.
	We warmly welcome the expertise of the noble Lord, Lord Ramsbotham, in this House. However, I think that it is useful to have the words "prevent offending" as well as "prevent reoffending", because that underlines the holistic aim of the whole criminal justice system. I am afraid that I use health service analogies from time to time, but it is rather like the noble Lord saying that the only responsibility of a hospital is to cure sick people. I would argue that a hospital not only provides a sickness service but forms a part of our health service. It is important that we are able to reflect on the overall aims of the system.
	We are all concerned about the number of young people entering custody and some of the outcomes; again, I reflect the concerns about self-harm among those young people. The noble Lord, Lord Thomas of Gresford, mentioned restraint. He will know that we are undertaking a review of the issue following the debate on the statutory instrument. Clearly, we are keen to see the outcome of that review in the next few months.
	However, we should not ignore the improvements that have been made in the youth justice system. There is much greater co-ordination and the youth offending teams are doing a good job. Yes, they could do better, and the annual report of the inspection of their work indicates that there are areas where improvements need to be made, but we should not ignore the advances that have been made or the additional resources that are being put into education. I have seen for myself in a number of places the real dedication of those working with young people serving in custodial settings to improve their lot and their lives.
	The youth crime action plan is due to be published in the summer. It will set out cross-government arrangements for tackling the level of crime and reoffending rates while also recognising the significant personal challenges faced by young people and the fact that the system has been criticised for not going far enough to meet their needs or protect their welfare. The plan will pick up and develop the very ideas that my noble friend Lord Judd and the right reverend Prelate have talked about today, but it must also consider public concern about youth crime.
	On welfare, to which we devoted much discussion, I welcome the intervention of the noble and learned Baroness, Lady Butler-Sloss, with all her experience. Part of the job of the courts in taking account of pre-sentence reports will be to assess welfare. The pre-sentence report will be based on what is called an "asset assessment", which will take account of any existing child protection plan, pastoral support, individual education plan, care plan, children in need assessment and pathway plan. So the mechanism is there.
	On the noble and learned Baroness's comments on whether the courts understand welfare, one would think that they ought to. She says that more must be done and, given all her experience, I accept that. We will ask the Sentencing Guidelines Council to look at the provision of youth justice in the Bill. I will, of course, ensure that in doing so it will take account of and, I hope, embrace some of her comments.
	There can be no doubt that welfare must be a key consideration for young offenders. That is the purpose behind government Amendment No. 36. However, we must also look beyond the needs of the young offender and address the needs of their victims and the public. That is why we must ensure that the courts consider the need for reparation and financial compensation. We must acknowledge that the public also expect an offender to be punished for their wrongdoing. The public may be accepting of the view that a young person should not be punished as severely as an adult but they are unlikely to accept that punishment should not be considered at all.
	There has been great discussion on the convention, what it means and the definition of a primary consideration. I am grateful to the noble Lord, Lord Kingsland, for his remarks on the drafting of the amendment, which he said just about passed muster; I will accept that. In our work between Committee and Report, we have looked at volume 1 of the Legislative History of the UN Convention on the Rights of the Child. It says that,
	"a number of delegations questioned whether the best interests of the child should be a primary consideration in all actions. It was generally noted that there were situations in which the competing interests, inter alia, of justice and of the society at large should be of at least equal, if not, greater importance than the interests of the child".
	It says that, in the light of those concerns, it was agreed that the convention should refer to the child's best interests as "a" primary consideration, to reflect that there are others as well. That is why we have been resistant all along to the suggestion of their being "the" primary consideration and why our amendment is constructed as it is.
	I have noted with interest the comments of the noble Lord, Lord Kingsland, on the purposes of sentencing in the clause, which are not to be amended by the government amendment. I do not think that there is anything untoward in the purposes of sentencing as expressed in the Bill, albeit that they are directed at young people. They seem to be entirely reasonable matters that should be considered, although I have no doubt that we could have a further debate on them.
	In conclusion, in resisting the other amendments that have been tabled, and in hoping that the House will accept the government amendment, I re-emphasise that we fully understand the importance of the welfare of the child, of ensuring that it is fully considered, understanding some of the circumstances in which young people have got into trouble and wanting to do everything that we can to get them out of trouble. We also think that wider issues will be concerned with the criminal justice system. That is why I hope that the government amendment will commend itself to noble Lords.

Lord Kingsland: My Lords, on that last point, the Government would have made their task on the purposes substantially easier if, in proposed new paragraph (c), they had put, "the purposes of sentencing mentioned in subsection (4) (so far as it is not required to do so by paragraphs (a) and (b))". That would have expressly incorporated the welfare factor into the purposes; then the Government would have met my criticism entirely. Perhaps the noble Lord might like to think about that.

Lord Hunt of Kings Heath: My Lords, I am ever eager to ponder the wisdom of the noble Lord, Lord Kingsland. I followed what he said. All that I would say to him is—I think that he is saying the same thing—that you cannot look at subsection (4) in isolation. It has to be read in conjunction with the amendment. He will say that I am making his case for him; I do not intend to, but I understand what he is saying and I agree that we need as much clarity as possible here. The referral for sentencing guidelines will be one way in which we can do that.

On Question, amendment agreed to.
	[Amendment No. 37 not moved.]

Lord Kingsland: moved Amendment No. 38:
	Clause 9, page 7, line 14, after "of" insert "financial compensation or other appropriate"

Lord Kingsland: My Lords, this amendment came upon me a little more swiftly than I expected; I apologise. This is a short matter compared to previous ones or compared to most matters in the Bill. I have only brought it back to your Lordships because of the very generous offer that the Minister made at the end of his reply to me in Committee:
	"I am happy to take away the provision to see whether anything more could be done to encourage more use of the order in the future ".—[Official Report, 6/2/08; col. 1134.]
	The amendment is about financial compensation orders. The view that I advanced in Committee was that this could be an effective way of impressing on offenders the significance of their crime. We are talking here about fairly low order offences; primarily but not exclusively vandalism. It would be a way of bringing home the reality of the damage that is being done by vandals to law-abiding householders and shopkeepers. I went on to express my surprise that only limited use appeared to be made of the orders in the courtroom.
	The Minister, fairly, came back to me and made a number of observations. First, he said that a provision in the Bill was not necessary because adequate powers already existed under Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000, where it is clear that a compensation order can be made in favour of a victim. Secondly, he said—and again I entirely accept the reason why the Government made this observation—that quite often the courts take the view that it is so unlikely that the offender would be able to pay that passing such a sentence would in effect be futile. However, the Minister concluded that, because he himself undoubtedly accepted the principle that lay behind the amendment, that he would go away and give the matter some thought and come back to your Lordships on Report. That is why I retabled this amendment. I beg to move.

Baroness Butler-Sloss: My Lords, I wonder whether there would be a person under 18 who had any money unless they were drug dealers—in which case they will probably have spent it. I am thinking particularly of couriers, because they are supposed, on some housing estates, to make a lot of money.
	I had the unhappy experience of being twice burgled by an 18 year-old who had once been the friend of one of my sons and therefore knew the layout of our house. She was ordered to pay £450 compensation by magistrates, at £10 a week. She paid twice, I think; I got £20. Eventually the probation officer got in touch with me and asked if I would mind if the magistrates set that order aside. I said I could not understand why they had made it in the first place. Although I understand that this would give all the powers to the court for under-18s, I wonder whether anyone has ever come across someone who had the money to pay compensation.

Lord Hunt of Kings Heath: My Lords, I have had an opportunity to consider this between Committee and Report. I am grateful to the noble Lord, Lord Kingsland, for raising the matter with me, and to the noble Baroness, Lady Butler-Sloss, for her interesting comments. I am afraid I cannot take the debate much further than at our last discussion. In 2005-06, the figures I have show that 15,492 compensation orders were made out of 96,000 sentences made in court. That suggests to me that courts find compensation orders are appropriate in a significant number of cases. It also presumes that they consider it feasible for the young person to pay that fine—not, I hope, through criminal practices because clearly that would go against the spirit, and indeed the letter, of the law in terms of the purpose of the criminal justice system.
	The courts have discretion here, although they also have to give reasons for not making an order when they are empowered so to do. I have no hard evidence that this is not working satisfactorily. I agree with the principle of compensation where it is appropriate. In view of this interesting discussion, I undertake to discuss the matter with the Youth Justice Board to see whether, either through guidance or through other actions, more needs to be done in this area.

Lord Kingsland: My Lords, I could not have asked for a more generous reply from the Minister. I am most grateful to him, and of course I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath: moved Amendment No. 39:
	Clause 9, page 7, line 24, leave out "226 or 228 of this Act (dangerous offenders)" and insert "226(2) of this Act (detention for life for certain dangerous offenders)"
	On Question, amendment agreed to.
	[Amendment No. 40 not moved.]

Lord Hunt of Kings Heath: moved Amendments Nos. 41 to 43:
	Clause 9, page 7, leave out lines 35 to 42 and insert—
	""(1A) Subsection (1) is to be read with paragraphs (a) and (c) of section 142A(2) of the Criminal Justice Act 2003 (which require a court dealing with an offender aged under 18 also to have regard to the principal aim of the youth justice system and the specified purposes of sentencing).
	(1B) Accordingly, in determining in the case of an offender whether it should take steps as mentioned in subsection (1), the court shall also have regard to the matters mentioned in those paragraphs.""
	Clause 9, page 7, line 43, leave out subsection (4)
	Clause 9, page 8, line 1, leave out "that Act" and insert "the Crime and Disorder Act 1998 (c. 37)"
	On Question, amendments agreed to.

Lord Judd: moved Amendment No. 44:
	After Clause 9, insert the following new Clause—
	"Secure accommodation for children and young persons convicted of a criminal offence
	(1) After section 89 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) insert—
	"89A Detention orders
	(1) This section applies where a child or young person (under 21 years of age) is convicted of a criminal offence and a court makes an order that that child or young person should be detained.
	(2) A local authority must provide suitable premises in which that child or young person can be securely accommodated and appropriate care and support provided.
	(3) The Secretary of State may by regulations make provision about the provision of suitable premises under subsection (2)."
	(2) In section 27(1) of the Criminal Justice Act 1984 (c. 58) (remand of persons aged 17 to 20) omit the words—
	(a) ", if the court has been notified by the Secretary of State that a remand centre is available for the reception from the court of persons of his class or description, ", and(b) "and, if it has not been so notified, it shall commit him to a prison."
	(3) In section 43(2) of the Prisons Act 1952 (c. 52) (remand centres, detention centres and youth custody centres) omit paragraph (c).
	(4) For section 106 of the Powers of Criminal Courts (Sentencing) Act 2000 substitute—
	"106 Interaction with sentences of detention in a young offender institution
	(1) Where a court passes a sentence of detention in a young offender institution in the case of an offender who is subject to a detention and training order, the sentence shall take effect as follows—
	(a) if the offender has been released by virtue of subsection (2), (3), (4) or (5) of section 102 above, at the beginning of the day on which it is passed;(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released by virtue of subsection (2), (3), (4) or (5) of section 102.
	(2) Where a court makes a detention and training order in the case of an offender who is subject to a sentence of detention in a young offender institution, the order shall take effect as follows—
	(a) if the offender has been released under Part II of the Criminal Justice Act 1991 (early release of prisoners), at the beginning of the day on which it is made;(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released under that Part.
	(3) Subsection (1)(a) above has effect subject to section 105(3)(a) above and subsection (2)(a) above has effect subject to section 116(6)(b) below.
	(4) Subject to subsection (5) below, where at any time an offender is subject concurrently—
	(a) to a detention and training order, and(b) to a sentence of detention in a young offender institution,
	he shall be treated for the purposes of sections 102 to 105 above and of section 98 above (place of detention), Chapter IV of this Part (return to detention) and Part II of the Criminal Justice Act 1991 (early release) as if he were subject only to the one of them that was imposed on the later occasion.
	(5) Nothing in subsection (4) above shall require the offender to be released in respect of either the order or the sentence unless and until he is required to be released in respect of each of them.
	(6) Where, by virtue of any enactment giving a court power to deal with a person in a way in which a court on a previous occasion could have dealt with him, a detention and training order for any term is made in the case of a person who has attained the age of 18, the person shall be treated as if he had been sentenced to detention in a young offender institution for the same term."
	(5) Section 61 of the Criminal Justice and Court Services Act 2000 (c. 43) (abolition of sentences of detention in a young offender institution, custody for life, etc.) is repealed."

Lord Judd: My Lords, in moving this amendment, I remind noble Lords that I speak as former national president of the YMCA which of course works very much in this area. I should also like to place on record my warm appreciation to those who put their names to this amendment. Indeed, I have heard that more noble Lords wanted to put their names to the amendment than were able to do so, which illustrates the strength of feeling on this issue in the House.
	The amendment is quite complicated, legally—I recognise that—and as I said in Committee I am very grateful to those with good legal minds who told me how it should be phrased. I was happy to accept their advice. The purpose of the amendment is to move to a situation in which no young person or child is put into custody unless special purpose-provided accommodation is arranged by the local authority, wherever it may be.
	Some have argued that to say that a child must never be put into custody unless those purpose-provided arrangements are available is pushing it too far, because there will always be exceptions. That sounds a very reasonable observation, but my experience is that it is a very dangerous one. As long as one recognises the possibility of exceptions, there will always be a tendency for people to rationalise that a particular case is an exception and that therefore it is necessary to put a child into the wrong kind of custody. That is sometimes just from inertia and sometimes just out of convenience. We have reached the stage when we must say that it is never going to happen—so we need to make sure that the alternative proper accommodation is available. Other countries have done this, and I cannot see why we have to lag behind.
	Article 37 of the UN Convention on the Rights of the Child states that custody should be a measure of last resort, and for the shortest possible time. I do not want to pull punches this afternoon, because it would not help my noble friend if I did. Our profligate use of custody does not conform to that principle and, too often, in effect, still constitutes a form of state-inflicted violence on young people, victimising children. With some notable and imaginative exceptions, for which prison staff and the non-governmental organisations involved cannot be too highly commended, I argue that custody as it currently operates is just not achieving positive results. The facts speak for themselves: custody does not prevent reoffending or help to make our communities safer. Eighty per cent of under-18 year-olds sentenced to custody reoffend within two years, while 30 per cent of children released from STSs reoffend within one month. It does not provide respite; custody moves crime but does not stop it. Prisons holding young people are frequently violent, drug-ridden centres of crime. Between 2003 and 2006, 18,000 assaults were recorded inside young offender institutions.
	It is no exaggeration to say that custody kills children. In 2007, three 15-to-18 year-olds and four 19-to-20 year-olds took their own lives in prison. Since 2000, 79 people aged under 21 have committed suicide in prison. More than 1,000 incidents of self-injury by juveniles in prison were recorded in 2006. I cannot believe that I am alone in asking what kind of society we are living in that we just drift along accepting this nightmare and what is happening under our noses.
	Prisons do not work for young people. There is very little exercise, activity or education, even in the juvenile prisons that have had huge additional funding. In Feltham, for example, a new education block was built, but it can accommodate only half the juveniles at any time. In Brinsford Young Offender Institution, the Chief Inspector of Prisons found that children never went outside for exercise, and that prison holds 473 boys aged 15 to 21.
	The training and educational levels required of prison officers remain fairly minimal. I do not in any way want to underestimate the daunting task with which they are confronted, nor do I want to underestimate the heroic efforts of some prison staff in dealing with young people, but in this general context, it is disturbing to note that prison officers recently asked for stays because they cannot control children. I hope that I can take an example from my own experience in education: it was from a much more primitive age, but in a first-class school to which I was privileged to go. Some masters used the cane and some taught. Perhaps that is an oversimplification, but discipline problems did not arise with some members of staff who managed to engage the attention and participation of the young. Others had to rely on deterrents to encourage the young to learn. Similarly, it is worrying that the first thing that happens to a young person on reception to prison is a forcible strip search.
	Secure training centres exacerbate the problem. I question whether there are not real moral issues involved in the concept of running children's jails for profit. What are children's jails about—profit or the very things that we discussed at length and in depth on a previous amendment? Whatever the arguments in that context, secure training centres clearly fail to solve the children's problems. They have had serious incidents of disorder and death, and they rely on excessive use of physical violence by staff.
	I am sorry if I sound irate about this issue, but I am irate about it. I feel, powerfully, that as a civilised society, the time has come to take a complete change of direction. We have to say that this kind of custody is never going to happen any more. Until we say "never" and therefore have to introduce alternative purpose-built accommodation, that will not happen. And, please, do not let anyone in the tabloid media or elsewhere say that what is being argued is the soft option. It is the tough option. What has too often been called for by the ill-informed media is something which in effect makes a bad situation worse, causes more crime in society, further distorts the odds against the young and is totally counterproductive. In the spirit of all that my noble friend said in introducing the government amendment earlier, I profoundly hope that he can be really reassuring to the House this afternoon. I beg to move.

Lord Brabazon of Tara: My Lords, I should point out, in the first line of subsection (2) of the proposed new clause, that it should read Criminal Justice Act 1948 rather than 1984.

Lord Ramsbotham: My Lords, my reason for supporting the amendment is contained in two phrases in the proposed new clause, the first in subsection (1)(1) and the second in subsection (1)(2). In the first, the noble Lord, Lord Judd, includes the term "under 21", whereas we have mostly been talking about juveniles under 18. In the second, he talks about suitable accommodation. He has already given examples of totally unsuitable accommodation.
	I could bore your Lordships will endless descriptions of totally unsuitable accommodation, unsuitable treatment and unsuitable conditions for young offenders which I have seen round the country. In many cases, instead of designing suitable accommodation for young people, existing accommodation has been "adapted—so-called"—for their use. I suppose that the classic example of total inappropriateness is the old convict penal establishment at Portland built at the beginning of the 19th century. It is about as unsuitable for young people as anywhere could be. Feltham, one of the few places that was purpose-built, was built to a design taken from America and suitable for a warm climate in California, not for the spaces beside Heathrow Airport.
	The other problem is that those between 18 and 21 are totally ignored throughout the penal system. A juvenile system under the Youth Justice Board looks after those under 18, and the prison system is designed for adults, but those between 18 and 21, called young offenders, fall between the two stools. No one is responsible for them within the prison system. They come under the guidance of area managers round the country who have responsibility for many different kinds of prisoners. In young offender institutions that contain both juveniles and young offenders, referred to as split sites, most of the facilities are given to the juveniles, because the Prison Service is under contract to the Youth Justice Board to provide for them, and the 18-to-21s, of whom there are many more, lose out. I suppose that one of the classic examples is Brinsford, which the noble Lord, Lord Judd, mentioned.
	We have an opportunity to do something about this. As I mentioned in Committee, one opportunity is a design called an academy—a term deliberately chosen in view of the academies being produced by the education department. It is run in the East End of London by an organisation called East Potential. This organisation is proposing a new site consisting of a custody centre—a foyer; a place that holds young homeless people; and a combination of work, education, drug treatment and other suitable facilities, all on site and designed to cater for the needs of a particular catchment area under the guidance of a local authority. It has the advantage that young people will not be taken too far from home. Once they get into the hands of the criminal justice system they will receive continuous mentoring, tutoring, teaching, training or whatever. Furthermore, the local area will be involved in looking after its own as opposed to the scourge of young people, particularly 18-to-21 year-olds, being sent all over the country to where there is a bed rather than to where they should be treated.
	I very much hope that, in the spirit in which the Minister has listened to and taken on board some of the points made so far on the Bill, he will take on board the need to do something about this group of young offenders to whom the noble Lord, Lord Judd, drew attention.

Baroness Miller of Chilthorne Domer: My Lords, I was in the queue of noble Lords who wished to add their names to the amendment and I am very pleased to have been lucky enough to do so as it deserves support. It refers both to accommodation and appropriate care and support. Recently I have tabled Written Questions on the number of mental health experts available to treat young people in secure establishments but the Government were unable to tell me how many there are. I shall pursue the matter but it indicates that there is still a very long way to go on this issue.
	Since we debated this in Committee, Anne Owers published her shocking report on Oakhill, which deals with some of the matters to which the noble Lord, Lord Judd, alluded. She discovered that there was a 59 per cent turnover of staff. The noble Lord, Lord Judd, asked what we are running these homes for. Is it to make a profit or to rehabilitate young people? G4S obviously does not have the same inspection system as a local authority establishment, and if it did it would have been taken into special measures, which is, I think, what Anne Owers's report was aiming to do. A local authority establishment would never have got away with doing nothing after four critical inspections.
	The noble Lord, Lord Judd, made the important point that the amendment must be fit for purpose. About three or four months ago I went round Reading Young Offender Institution which has the historic interest of containing Oscar Wilde's cell. However, it should be turned into a museum as it contains very inappropriate accommodation. Conditions are very hard for the dedicated staff who have established innovative training systems. They are clearly working under incredible duress in surroundings in which it is difficult to produce the results they want. I shall say no more as the noble Lord, Lord Judd, has said it all. The figures reveal a shocking increase in the number of young people who are locked up. I am pleased to support the amendment.

Baroness Butler-Sloss: My Lords, I, too, support the amendments and give the example of what went right when two young children were placed in secure accommodation and remained there until they were aged 18 and 19 respectively. I refer to the Bulger killers, Thompson and Venables. I dealt with an aspect of their case and saw the reports on them. They had been very well cared for in two separate places of secure accommodation where they able to learn of the appalling crime they had committed, to understand it and to move on from it with a great deal of help from, among others, psychiatrists, whose reports I saw. One has only to consider what might have happened to them if they had been slightly older, but well under the age of 18, and had gone in to one of the institutions that the noble Lord, Lord Ramsbotham, told us about today and in the past. With any luck, they will, under new identities, live respectable and responsible lives. Their rehabilitation was made possible in good, secure accommodation units.

Baroness Stern: My Lords, I very much support the amendment. I would have added my name to it, but it was too popular and there was no space left. It provides a welcome opportunity to talk about the inappropriateness of most of the accommodation in which children and young people are held and to see if we can persuade the Minister that we can do better, given our recent, small successes.
	I thank the noble Lord, Lord Judd, for the way that he moved the amendment and for what he said about Brinsford. I am grateful to the Printed Paper Office, which always sends me the reports of the Chief Inspector of Prisons. When I do not have time to read the all of the reports, I always look at the sections on time in the open air. I have to tell noble Lords that, so far, one in 10 establishments, including those for juveniles, allow time in the open air every day. That is astonishing, considering that one of the standard minimum rules for the treatment of prisoners is that everyone shall have time in the open air every day.
	Our starting point is that we are discussing vulnerable young people. The starting age for placement in an institution of this nature is, I think, 12. If I am wrong, I am sure that the Minister will tell me. About 200 of the juveniles who are locked up are put in local authority secure children's homes that are run according to childcare principles, as my noble and learned friend Lady Butler-Sloss has told us. The rest we put in prison-like establishments that are run either by the Prison Service, according to its rules, or in secure training centres.
	The Joint Committee on Human Rights very recently published a report on the use of restraint in secure training centres. The committee had tried to get hold of the training manual that set out how to train members of staff to restrain children in those centres and young offender institutions. That training manual is secret; but following pressure from the Joint Committee, a redacted version can be seen in the Library. The headings of some of the redacted sections are very interesting and I shall bring them to the attention of noble Lords. The Joint Committee's report stated:
	"We were alarmed by the headings of some of the redacted sections, namely 'hair grab', 'strangle against the wall', 'strangle on the ground', 'kicks standing' and 'kicks on the floor'. It was not possible to ascertain the content of these sections"—
	clearly because they were headings followed by plain white space.
	One of the secure training centres that trains people according the manual is called Oakhill. The Chief Inspector of Prisons and Ofsted recently inspected it, and I am grateful to the noble Baroness, Lady Miller, for referring to the inspection report. The chief inspector said:
	"For some time, Ofsted and the YJB have been concerned about the centre, particularly the lack of sufficient order and control, without which the safety of both children and staff cannot be assured. As a result, in July 2007 the YJB limited the number of children at the centre to 56 and required the contractor to put in place a recovery plan".
	Therefore, 56 of the children locked up in an establishment needed a recovery plan. The Youth Justice Board asked the prisons inspectorate to inspect and the chief inspector concluded:
	"Sadly, our inspection confirmed that staff at Oakhill continued to struggle to maintain order and to control safely the children in their care ... The scale of the centre's difficulties was illustrated most starkly by the staggering levels of use of force by staff, often in response to the all too frequent assaults by children on staff and on other children. In the nine months before the inspection, force was used 757 times. On 532 occasions"—
	that is, within nine months—
	"this involved the highest level of restraint, requiring at least three members of staff, with one holding the child's head. Without a sharp reduction in these statistics the centre cannot pretend to be anywhere near the recovery required by the YJB".
	The chief inspector ended by saying:
	"We had some confidence that the new direction could, given time, turn the centre around, but this required the YJB to provide certainty about its future, which was ... unlikely while matters remained at such a low ebb. It might be more realistic for the YJB to empty the centre briefly, so that it can be re-launched with a properly trained and reinvigorated staff".
	I hope the Minister will tell us that it was emptied but I fear that he will not.
	Finally, perhaps I may raise a point about Section 34 of the Offender Management Act 2007, which some of us who were involved in the passage of that legislation will remember. Section 34 gives the Secretary of State power to specify by order types of custodial provision in which a detention and training order may be served in addition to young offender institutions, secure training centres and local authority secure children's homes. Can the Minister tell us whether that power is being used, how often it has been used and whether it has led to new and interesting therapeutic interventions for young offenders? If it is being used, it could be a basis for implementing this amendment, which I very much support.

Baroness Howe of Idlicote: My Lords, I put my name to this important amendment early on, and it was clear that there was a rush to back it. The noble Lord, Lord Judd, has spelt out the basis for it. It deals with children and young people right the way up to the age of 21 and, above all, it states that there should be specific appropriate accommodation for them. In certain cases, that accommodation would certainly have to be restrictive. Most importantly, we are beginning to see a change of mind about what is appropriate when dealing with young people, and not just among those of us who have been following this issue in one way or another as magistrates or members of the judiciary and so on. People are generally beginning to realise how totally ineffectively we deal with young people who have been damaged. As we heard, eight out of 10 of them reoffend within two years.
	My noble friend Lady Stern's described the sort of activities that are used to restrain youngsters, which are totally appalling and totally ineffective. It is very worrying that we still do not have a government reaction and that there has been further delay because wider research is apparently needed before the Government can come to any conclusion. Smaller units, relevant to the local community, are being recommended, as my noble friend Lord Ramsbotham emphasised, which seems to fit the pattern of what the Corston report argued for women offenders and which would clearly fit this pattern. It is also noticeable that not just the parliamentary Joint Committee on Human Rights was making those points and the international Centre of Crime and Justice Studies, but also the Local Government Association. It is terrifying that 40 per cent of the boys, but 67 per cent of the girls have serious mental health problems. What are we doing about it? We have heard it all and it has been extremely saddening. I look forward to the Minister's reply.

Lord Hunt of Kings Heath: My Lords, like our first debate, this has been an extraordinarily interesting and well informed debate. My noble friend Lord Judd said he thought he was irate, but I have always regarded him as a great humanitarian. I have very much welcomed the interventions that he has made in debates on this Bill in the light of that humanitarian concern and, of course, his wide experience. I well understand the concerns expressed by noble Lords. The noble Lord, Lord Ramsbotham, speaks from a wide experience of what he describes as unsuitable accommodation for young people. I was also very interested in the comments of the noble and learned Baroness, Lady Butler-Sloss, about how there is potential in the system to help young people, however grievous their crime might have been; the crimes to which she referred were indeed grievous. I agree that custody must be a last resort. Some major challenges lie ahead for the youth justice system as a whole.
	The noble Baroness, Lady Stern, raised a very interesting point on the numbers in custody. The figures that I have for those in custody at any one time in the under-18 custodial estate are as follows: 10-to-17 year-olds in secure children's homes, 215; 12-to-17 year-olds in secure training centres, 233; 15-to-17 year-olds in under-18 YOIs, 2,521; and 18 year-olds still in under-18 YOIs, 262. My understanding is that the use of custody for juveniles has not shown the kind of significant increase that we have seen for adults. At least we can share some degree of satisfaction on that, although we understand that much more needs to be done. I was interested in my noble friend's comments about reoffending. He is right that some of the reoffending rates are very high. Clearly, we need to do everything that we can to try to get those figures down.
	Overall, for all sentences in youth justice, the proven reoffending rate was 40.8 per cent, which was a decrease of 2.5 percentage points since 2000. Within that figure is a wide variation, depending on the type of juvenile disposal. The noble Lord was right that the reoffending rate for custodial disposal is high. That shows that there is a great challenge ahead; it shows also that, inevitably, the young people who end up in custody are always likely to be those who are most susceptible to criminal activity. I am sure that there is great debate about that. What is not in doubt is that there has been some improvement, but it is clear that much more needs to happen.
	The noble Lord, Lord Ramsbotham, raised some interesting points about 18 to 21 year-olds. He has talked to me about the East End project. I feel that an invitation is coming my way very shortly to go there with the noble Lord. I would be happy to take it up because the project is very interesting and I will want to ensure that my department is aware of it.
	I understand the points that he raised about this younger age group. We are looking at the possibility of new arrangements for offenders in custody aged between 18 and 24. They are being piloted following a review of provision for young adults. So we have this issue very much in mind. I am happy to write to the noble Lord and share with him—

Lord Ramsbotham: My Lords, I am grateful to the Minister for that. Instead of putting all this money into hideous Titans, have the Government considered spending money on building purpose-built accommodation for women and children and then moving the adults into what has been evacuated?

Lord Hunt of Kings Heath: My Lords, we have not debated Titans for some time, so I welcome that helpful intervention. Given the need to increase provision—some noble Lords will disagree with me about that, but it was one of the conclusions of the Carter report—and given all the constraints on planning and development, we believe that Titans are the best way to get that provision up and running as quickly as possible. I am sure that the problem is that one imagines Titans as those prisons that one sees in the US, with huge towers, machine guns and all the rest of it, but there is no reason why, within a Titan campus—if I can put it like that—smaller units cannot be run with all the advantages of small-scale care management, but with the advantages, too, of the large-scale infrastructure investment that will come. It was clear in our Statement on Carter that building the Titans will free up some smaller-scale accommodation, which could well be used for some of what the noble Lord has talked about. He will know that, in the light of Corston, we have started a project that is looking at smaller, local units for women. I shall not convince the noble Lord, Lord Ramsbotham, or other noble Lords on Titans, but we believe that they will give us some flexibility to meet his concerns. That is certainly the intention.
	Those aged 18-plus were debated in Committee and last week on our first day on Report. I understand the concern felt about the transfer of young people from youth to adult custodial settings. My understanding is that, since last week, my department and the Youth Justice Board have been discussing a range of transition issues. I shall make sure that our debates are played into those discussions. I fully accept that transition is important and that it is important to ensure that if there are successful programmes—we have heard from the noble Baroness how there can be—their advantage is not lost if a young person transfers into an adult establishment. That point is well taken.
	I also take the point about mental health problems. We have discussed them before in relation to adult prisoners, but mental health issues are as debilitating for young offenders as they are for adults. We know that there have been improvements in CAMH services in the National Health Service and we need to take advantage of those. The review by my noble friend Lord Bradley will take these concerns into account.
	There is understandable concern about the use of restraint in juvenile secure settings. We debated the statutory instrument last summer. The debate, which was led by the noble Lord, Lord Carlile, was very instructive. We announced the independent review of restraint, chaired by Andrew Williamson and Paul Smallridge, and on 20 March, at the request of the two co-chairs, we announced an extension to the deadline for the report. I understand that they will now report their recommendations to Ministers by 20 June.
	The headings mentioned by the noble Baroness, Lady Stern, may well refer to the sorts of violent acts in which staff may be required to intervene. My noble friend Lord Judd opened his remarks by paying tribute to many of the staff in the current youth custodial settings, which was very handsome of him. When it comes to restraint and other issues, one has to recognise the pressures on staff and the need for intervention. I am sure that we will welcome the report on restraint when it is—

Baroness Stern: My Lords, the Minister is suggesting that the headings that I read out are to sections about what can happen to staff. Can he explain why they are redacted?

Lord Hunt of Kings Heath: They are what, my Lords?

Baroness Stern: My Lords, they are edited out. There is white space under the headings because we are not allowed to read what is there. That is what redacted usually means.

Lord Hunt of Kings Heath: My Lords, I am grateful for that elucidation. I do not have a specific answer, but I will look into it. It may well have to do with matters that are regarded as confidential. I do not know, but perhaps I can come back to the noble Baroness on that.
	The noble Baroness, Lady Miller, asked me about Oakhill secure training centre. The report by Her Majesty's Chief Inspector of Prisons is serious and we have considered it carefully. It undoubtedly reflects very serious problems that the centre faced. I am glad to say that I understand that the centre has stabilised and levels of disruption have reduced. The Youth Justice Board is closely monitoring it and managing the numbers of young people placed in it. It is carefully considering every placement to ensure that young people accommodated at Oakhill are safe and secure. G4S, which is responsible for the centre, has been asked to develop an action plan in relation to the recommendations raised by the inspection. There is no complacency on that matter.
	A number of noble Lords spoke about the tragedy of death or self-harm in custody. I echo what they said. They will know that the Youth Justice Board has introduced new policies and practices to improve safeguarding and to help to prevent suicide in custody. That involves counselling, support groups and specialised psychological interventions as well as general healthcare and welfare, purposeful activity and the appointment of suicide prevention co-ordinators in all establishments.
	The noble Baroness, Lady Stern, mentioned Section 34 of the Offender Management Act 2007. I have answered a Parliamentary Question on that—at least, it will soon be answered. My understanding is that Section 34, as she said, gave the Secretary of State power to extend the range of types of establishment in which young people serving detention training orders may be accommodated. I understand that the Youth Justice Board is looking at the scope for and practical implications of such an extension. I hope that that gives her the full answer that she called for.
	Advice has miraculously turned up about the PCC manual. It is not in the public domain because it is an instructors' manual. There is a risk that people might use the information gained in a way that put others at risk. I am happy to respond rather more fully to the noble Baroness on that point.
	My noble friend's amendment is most extensive and I congratulate him on his drafting skills. However, there are severe practical problems with its implementation. He proposes that anyone under 20 who receives a custodial sentence should be placed in local authority secure accommodation—a secure children's home. It would apply to a very wide age range—considerably wider than that of young people who may be tried in a youth court. There would be real concerns, for instance, about placing 19 year-olds and 10 year-olds in the same establishment.
	Local authorities are already required to provide secure accommodation, but its volume has declined in recent years. There are currently fewer than 400 places in secure children's homes in England and Wales. The majority of them are used by the Youth Justice Board to accommodate vulnerable young people who have been sentenced to custody. It would be impossible to accommodate all under-18s sentenced to custody in local authority secure accommodation, let alone 18 and 19 year-olds, whom the new clause also covers.
	All is not lost. My noble friend Lord Adonis, who is sitting beside me, detailed some of the major improvements in the youth justice system in our recent debates on his Bill. I do not want to repeat what my noble friend said in those debates, because many noble Lords took part in that discussion, but it signals an acceptance by the Government and the Youth Justice Board that there are significant challenges in the current estate and that there is more that we need to do.
	We need to improve provision, but we should not underestimate the improvements that have taken place since the Youth Justice Board was established. For instance, let us look at some of its current priorities. It is concentrating on getting better provision for 15 and 16 year-old boys, who are more vulnerable; a new unit is being developed at Wetherby YOI. All 15 and 16 year-old girls were moved out of prison accommodation by the end of 2003. Five new special units for 17 year-old girls have been developed within the Prison Service estate but entirely separate from adults and young adults. As I said, there has been the development of joint work with the Department for Children, Schools and Families and the work of the Youth Justice Board, as well as the development of the Children's Plan and the youth crime action plan. All those are symbols of a determination to meet the challenges that noble Lords have set. If I cannot reply in the affirmative to my noble friend's amendment, I hope that he will accept that I recognise the concerns that he has expressed.
	I pay tribute to people working in the youth custodial setting for the challenges that they face. I understand my noble friend's frustration, but changes have been made and further improvements will be made. I believe that, at the end of the day, we all share the concern to ensure that these young people are given as much opportunity as possible to be set on the right path for a good life ahead.

Lord Judd: My Lords, I am grateful to the Minister for his usual careful and thorough response to the arguments that have been put forward. I am extremely grateful to noble Lords who have spoken in support of the amendment. They have brought a great deal of authoritative experience and insight to bear on an issue about which there is clearly widespread concern in this House.
	I shall pick up several of the points that the Minister made in replying. First, he referred to my humanitarian concern. I hope that I can claim to be part of the widespread culture of humanitarian concern that marks this House and so many of its activities. It has made me very pleased to be a Member of this House, which brings to bear not only learning, expertise and excellence but compassion and concern in a way that sometimes might not be so easy for the other place, with all the pressures of the media operating as they do on the electoral cycle—a point that we should perhaps bear in mind when looking at the future.
	The Minister has been at pains to appreciate the service and efforts of some of those who deal with these youngsters. I agree that there are probably many who are to be applauded. I have seen for myself the heroic efforts that can be made and the extraordinary results, such as young people who have been involved in armed robbery going on to hold postgraduate degrees and to make a very positive contribution to society. We should applaud them. The trouble is that they are still the exception. The reality is still stark. It would be quite wrong to go over all the statistics again, but they are there, such as the fact that 80 per cent of young offenders under 18 reoffend within two years. That is not a success story, although there are successes, and we must take that seriously.
	The Minister—this is not the only occasion on which he has done this—also talked about the determination to see proper services and support arrangements in place. I am sure that he will agree that much of the best research that has been done in this area shows that, if progress is to be made with the young, it will be made in small units. The ability to provide real relationships within small units is crucial to success. After all, when we dealt with the Minister's own amendment earlier this afternoon, we touched on the fact that we must look to the needs of the young people concerned. He will have noticed that I was at pains to point out that what I liked about his amendment was that it did not talk about children in generalised terms; it talked about the offender. That was an important point to underline.
	I tremble when I hear about the vast new prisons that are marching completely in the opposite direction from what the research indicates is necessary for the young. My noble friend has said that he does not believe that it would be possible to provide alternative accommodation of the kind for which I argue on a comprehensive basis. However, he has not answered the point: if some other countries can do it, why are we not able to? I do not understand.
	I am a firm supporter of the Government, although sometimes they might ask when. In that context, we like to say how basically strong the economy is, despite some temporary interruptions from time to time. It does not quite tie up if we claim that we are one of the strongest economies in the world but then say that we cannot afford to do what other countries that do not have such economies can do. That seems to say something about priorities. I have touched on that before, but the balance of expenditure is a contentious issue. Galbraith spoke about,
	"private affluence and public squalor";
	perhaps what goes on in our prisons is a good illustration of the point that he so well and so often made.
	I have never doubted my noble friend's good will on these matters. It is good to see the Under-Secretary with responsibility for the children's Bill on the Bench. Anyone who has been through that Bill, with which there is a great deal of overlap, would not be able for a moment to doubt his sincerity and commitment. There are mountains to be moved and I do not want to undermine my noble friends' efforts to move those mountains. Although they probably cannot admit it, I believe that they are very much part of those who want to move the mountains.
	In view of all that my noble friend has said, it behoves me to go away and look seriously at his arguments and his response and to consider deeply how I should now proceed. I should like to give notice on how I might combine my concerns in this context with those of noble Lord, Lord Ramsbotham, and his real anxiety to see how the situation can be improved in the immediate future. If the noble Lord will permit me, I should like to talk with him on how we might combine our efforts in that respect. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Falkner of Margravine: moved Amendment No. 45:
	After Clause 9, insert the following new Clause—
	"Restrictions on custodial sentences for offenders aged under 18
	(1) This section applies where a person under the age of 18 is convicted of an offence punishable with a custodial sentence other than one—
	(a) fixed by law; or(b) falling to be imposed under section 51A(2) of the Firearms Act 1968 (c. 27) (minimum sentence for certain offences under s. 5) or under sections 226 to 228 of the Criminal Justice Act 2003 (c. 44).
	(2) The Criminal Justice Act 2003 is amended as follows.
	(3) In the title of section 152 (general restrictions on imposing discretionary custodial sentences), after "general restrictions on imposing discretionary sentences" insert "on offenders aged 18 or above".
	(4) In section 152(1), after "where a person" insert "aged 18 or above".
	(5) After section 152 insert—
	"152A Restrictions on custodial sentences for offenders aged under 18
	(1) A court shall only pass a sentence of custody on a person under the age of 18 as a measure of last resort and where—
	(a) the offence committed caused or could reasonably have been expected to cause serious physical or psychological harm to another or others; and(b) a custodial sentence is necessary to protect the public from a demonstrable and imminent risk of serious physical or psychological harm.
	(2) The court shall state in open session its reasons for passing any sentence of custody under this section.""

Baroness Falkner of Margravine: My Lords, we have arrived, by way of this amendment, at building safeguards yet again as pertains to custody for children. Noble Lords will be forgiven if they felt a sense of déjà vu or familiarity in many of the arguments as they related to Amendment No. 44. Amendment No. 45 would create a statutory custody threshold that must be met before any child is sentenced to custody to ensure that children are locked up only as a last resort and for reasons of public protection, save where mandatory custodial sentences apply.
	We acknowledge the Minister's concerns about children who have committed grave crimes and would support a custody threshold that relates only to offences other than murder and the serious crimes listed in Sections 226 and 228 of the Criminal Justice Act. A distinct custody threshold for children and young people was introduced by Parliament more than 25 years ago. It resulted in a 54 per cent decrease over nearly a decade in the number of under-21s given a custodial sentence for indictable offences.
	In the year ending March 2007, the Youth Justice Board spent £280 million on custody for children, notwithstanding the cost of support in the community for these children and their families. The board now has a target, approved by the Home Office, to reduce the number of children in custody by 10 per cent by 2008. Yet the number of children in custody has risen, not fallen. The amendment is therefore in complete conformity with the stated aim.
	I was interested to hear the Minister's numbers for children being received into prison in the debate we have just had. He went slightly too fast for me, so I wonder if the numbers I have match with what he said. Nevertheless, let me repeat them. The number of children aged between 15 and 17 being received into prisons under an immediate custodial sentence has increased from 4,918 in 2003 to 5,219 in 2006, an increase of 13 per cent. This does not take into account receptions into secure training centres and local authority secure children's homes. Contrary to what the Minister said earlier, there has been a reduction of 22 per cent for all prison receptions, adults and children, raising concerns that children are disproportionately being given immediate custodial sentences.
	The Minister has argued that a custody threshold already exists in the form of Section 152(2) of the Criminal Justice Act 2003. We would argue that it is inadequate because it does not meet our obligations in international human rights law, again something that has been much talked about today. The obligation is that children be treated in a recognisably different way from adults. Custody for children should be used only as a last resort, but we would go further and say that the wording of Section 152(2), which emphasises the seriousness of the offence as the factor to be considered, is meaningless without reference to a person's age. That is the object of our amendment.
	The Minister might also argue that that these safeguards would put the public at significant risk, but Ministry of Justice figures up to December 2007 show that the vast majority of children aged between 15 and 17, some 78 per cent, who were sentenced to imprisonment in 2006 were not convicted of offences related to sexual crimes or violence against the person. More than one in 10 children—14 per cent—were imprisoned for theft and handling; 5 per cent for motoring offences and 4 per cent for drug offences. A quarter of children were imprisoned for other offences that included affray, criminal damage and even drunkenness. Then there are well known cases such as the Deerbolt Two where custodial sentences were passed on children for graffiti offences.
	We know that custody does not rehabilitate the vast majority of children, and much has already been said about that. Three-quarters of these children reoffend within a year. This amendment would enable interventions to kick in earlier for those who do not pose a risk and provide better resources for those who have to enter custody for reasons of public protection.
	Finally, the Children's Plan, published in December 2007, promises that the Government are taking,
	"a fundamental look at the way in which the criminal justice system overall is working for young people to ensure that we learn from existing good practice and address current concerns. This includes examining what we know about why young people offend, what a more effective approach to prevention would look like, [and] the options available for dealing with children who commit crimes".
	So there clearly is an intention on the part of the Government to take a comprehensive look at this area in the round. This amendment would provide them with the means of meeting some of those objectives.
	Organisations working with children in the criminal justice system and those concerned with the protection of human rights are united in urging a considerable reduction in the number of children held in custody. The general public want more effective intervention and less imprisonment. The Local Government Association has agreed that it is time we,
	"explored more effective and sustainable ways of dealing with children in trouble, rather than resorting to"
	locking them up. This amendment provides the Government with a way to do that. I beg to move.

Lord Monson: My Lords, as a complete layman, it seems to me that the amendment has at least two flaws. First, how do you determine what is "serious psychological harm"? A 17 year-old who breaks into an isolated farm in which a single woman is living could well not use physical force, but it still might frighten the woman out of her wits. The same thing might apply to an elderly man. Psychological harm might not become apparent immediately but take several months, or even years, to manifest itself. Even "serious physical harm" requires some greater definition. Supposing that same burglar were to punch the householder in the face, breaking her nose or knocking out a tooth. Does that count as serious or mild harm? I simply do not know. The noble Baroness may well have an answer to that.
	The second flaw is the extremely high hurdle required by this amendment to send someone dangerous in some respect to prison. Not only do they have to have committed an offence, but the possibility of them committing another one must be imminent. If, for some reason, they go abroad and are not in a position to commit another offence in this country for six months, there is no imminent risk of an offence; they are not likely to commit an offence immediately. So it must be demonstrable and imminent. I do not know quite how you can demonstrate that they are likely to offend immediately, in a few days or weeks. Perhaps the noble Baroness will be kind enough to clarify exactly what that means.

Baroness Butler-Sloss: My Lords, I support the principle behind the amendment but I, too, have some concerns about the wording. It is too restrictive. I take the point made by the noble Lord, Lord Monson, on that. I am also concerned that paragraphs (a) and (b) of proposed new Section 152A(1) are cumulative, so that you must have both aspects in order for a custodial sentence to be passed.
	On a slightly different aspect that worries me very much, many adults with serious mental health problems find themselves in prison because there are not hospitals appropriate to take them. There are therefore people locked up in prison as a place of last resort, although the problems that led them to commit their crimes are due to their mental health rather than solely to their criminality. I do not know—I ask the Minister—how many children and young people are in prison because there is nowhere else to send them and they are not safe to leave in the community.
	I had some experience in my previous life of trying to find places for young people who were not actually going before the criminal courts, although they should have been there in one sense; although they had committed offences, we caught them before it was necessary to take them there. I remember one 15 year-old who was extremely dangerous. It was difficult to find a place for him to go. I recall opening a place for young psychiatrically disturbed people under the age of 18 in Newcastle about 15 years ago. It added another 20 places to the eight places at that time catering for these mental health problems. That provided 28 places only for the whole country.
	There will be people who need to be locked up, but they do not need to be locked up in prison. What are the Government providing by way of psychiatric places in a hospital that devotes one wing to young people, or therapeutic communities where the young people can be helped?
	The other group that I remember well was at Peper Harrow, which is now Childhood First; that community had to close down because people would not pay to send people there. The Caldecott community has a number of young people who otherwise might very well be in prison. The therapeutic community is an enormously valuable asset for those who do not actually have to be locked up as dangerous but who, if they were not in the therapeutic community, would either have committed suicide or be in a psychiatric hospital, if one could find one. We need more mental health places for young people as the alternative to putting them in prison.

Lord Kingsland: My Lords, your Lordships' House owes a great debt to the noble Baroness, Lady Falkner, for tabling the amendment. We have debated a great deal the damage that is done to children who are placed in custody, but we have talked about it in general terms of principle. The noble Baroness has introduced an amendment that would specifically limit the powers of the court to put children in custody except in well defined circumstances. She is to be congratulated on that.
	My hesitations about the amendment are not about the approach, which is excellent, but about the restrictions in proposed new Section 152A. Like the noble Lord, Lord Monson, and I think the noble and learned Baroness, Lady Butler-Sloss, I think that those are just too restrictive. I would like to see in the amendment a more graduated approach to the restrictions, particularly bearing in mind that the Bill introduces the youth rehabilitation order, which gives the court a great deal more flexibility. By saying that, I would not in any way like the noble Baroness to think that I thought that her drafting efforts were in vain.

Lord Thomas of Gresford: My Lords, I say in support of the amendment that the court, when it passes a sentence of custody, is amply able and capable of determining whether the custody is a measure of last resort. It is amply able to determine whether,
	"the offence committed caused or could reasonably have been expected to cause serious physical or psychological harm",
	and that it,
	"is necessary to protect the public".
	Those are issues that sentencers customarily have to resolve. The purpose of introducing this threshold is to show that only where physical or psychological harm is occasioned to members of the public, and there is a risk of it continuing, should custody be used in respect of a person under the age of 18. From these Benches, we are trying to rebalance the system so that custody is not seen as an appropriate sentence for minor or major dishonesties, fraud or whatever, for those who are under the age of 18, but should be reserved for where there is serious physical or psychological harm, or the threat of it.

Lord Elystan-Morgan: My Lords, I, too, have respect and sympathy for the motivation behind the amendment. Indeed, any emphasis in the law that underscores and endorses the principle that incarceration should be the very last resort in relation to a young person, and even more so for a child, obviously has massive merit. I accept that the wording of the amendment is such as to give rise to undue restrictions; most certainly it could not possibly be contemplated in the form in which it now exists.
	I want to make a point that arises from the remarks made by the noble and learned Baroness, Lady Butler-Sloss. It relates to the very high percentage of children and young persons who are suffering from mental conditions, some of which are very serious. The situation is so serious that one could well ask this question: is society treating those persons as if they were criminals with only a mental health overlay when in fact the situation is the very opposite and is basically a mental health problem with a criminal overlay? Anything that can bring about a change in that culture of thinking would be extremely beneficial.

Lord Judd: My Lords, I am delighted to put my name to the amendment, because it raises extremely important points. I made the same arguments on the previous amendment, so it would be to take a liberty with the House to repeat them. I hope that my noble friend will take the amendment seriously in the context of the view, which I understand he shares, that we must decide whether we are on the side of rehabilitation and in the context of what is appropriate for each individual young offender in the cause of achieving rehabilitation.
	In replying on the last amendment, my noble friend said that those of us advocating it were on the side of humanitarian concern. We are proud to be so, but it really is not just about humanitarian concern—that is part of the exasperation that arises. It is about being effective in protecting society, because what is being done at the moment does not protect society. That is the point. What is the tough way to protect society and what is not? Here there is a complete coincidence between what makes enlightened humanitarian concern and what is effective at achieving results.

Lord Hunt of Kings Heath: My Lords, like other noble Lords, I congratulate the noble Baroness, Lady Falkner, on returning to what is undoubtedly an important matter. In a sense, it is a practical expansion of the overriding debate about youth justice, its purposes and the place of custody within it. Again, this has been an extremely interesting debate, in which there is very little difference between noble Lords on intent, the purposes of custody, the fact that custody should be the last resort and the rehabilitation provisions that we wish to see within any custodial setting.
	The Government share some of the practical concerns about the amendment. I will write to noble Lords on the figures, because I know that they are of great interest. Overall, my understanding is that the number of under-18s in custody has remained relatively stable over the past seven years. The proportion of under-18s given custody as a proportion of all under-18 disposals has actually fallen from about 4 per cent to 3 per cent. It is an indication—I do not say any more than that—that there has been a greater use of out-of-court disposals. We seek to increase the availability of out-of-court disposals in the future, and the Bill contains such provisions.
	The problem that we have with the amendment is that it would set a much higher custody threshold for under-18s than at present. The noble Baroness wants to do that, so this is really a question of judgment rather than the technicality of the amendment, although there are some technical issues. I understand why she wants to set a high custody threshold; she thinks that the actions of the courts and the provisions in custody do not sufficiently meet the needs of those young people. I understand that, but we are concerned about the practical implications. As the House will be aware, and indeed as the noble Baroness said, in most cases a court may impose custody under Section 152(2) of the Criminal Justice Act 2003 only if it considers that the offence and any associated offences are so serious that neither a fine alone nor a community sentence can be justified.
	The amendments that I moved last week, which your Lordships spoke on, will mean that the courts will have to consider specifically whether a youth rehabilitation order with intensive supervision and surveillance or intensive fostering could be used. If the court considers that they are not sufficient, it will have to say why. Our amendment reflected our previous discussion. The Government have recognised that and have moved considerably on it.
	The first limb of the noble Baroness's amendment relates to the seriousness of the offences. The second goes on to provide that, even where serious physical harm has been caused, the court cannot impose custody unless it is necessary to protect the public from a demonstrable and imminent risk of serious physical or psychological harm. The problem that we have is that we think that that would place severe restrictions on the court and undermine our obligation to protect the public. It could mean that a person could commit an offence involving the deliberate infliction of serious bodily injury but the courts would have no power to impose custody unless the prosecution could prove beyond reasonable doubt that custody was necessary to avoid the future risk of serious physical or psychological harm. We heard from the noble Lord, Lord Monson, among others, of some of the problems in meeting that requirement.
	We have debated at great length and with enthusiasm the question of judicial discretion and we will be doing so again later today—we tend to pray it in aid of whatever argument we seek to put forward—but I would be very cautious about accepting this amendment, as it would unnecessarily fetter the discretion of the judiciary.
	The noble and learned Baroness, Lady Butler-Sloss, and then the noble Lord, Lord Elystan-Morgan, spoke about mental health problems suffered by young people in custody. I think that they were making two points: there could be some young people in custody because there is no provision in the health service and there are other young people in custody who ought to be under the care of appropriate health service provision. During the passage of the Metal Health Bill through your Lordships' House in the previous Session, we debated many of these points as they applied to adults. There is clear evidence in the prison system of people with severe mental health problems who ought to be in secure NHS facilities. That is recognised. I pay tribute to the Prison Service and the health service for the substantive improvements that have taken place, but more needs to be done. The report of my noble friend Lord Bradley, which we eagerly await, will cover those matters, as it will in relation to young people. I am not at all complacent on this point. It is a well recognised matter.
	Last week, I think, we discussed the development of child and adolescent mental health services, which have been expanded by the National Health Service. That is a great comfort. In addition, the provision of NHS secure forensic mental health units has been expanded. In 2002 there were only two units, with a total of 28 beds, in Manchester and Newcastle. The NHS National Commissioning Group—which I think I once had responsibility for—has ensured greater capacity and better geographical distribution, with units opening in Birmingham, south London and west London over the past three years. Another unit opening in Southampton in 2008 will bring the total number of units to six. I also understand that from April 2007 a further 10 secure mental health beds specifically for young people with a learning disability have been commissioned from St Andrew's Hospital in Northampton, with seven more planned in Newcastle from April 2008. That does not wholly answer the challenge, but it shows that we are moving in the right direction.
	Let me be clear: in all our activities, we are seeking to reduce the number of young offenders coming into court and to provide the courts with robust alternatives to custody. We share the analysis of so many noble Lords as to why that should be necessary, but in certain circumstances custody will be necessary. In those circumstances the judiciary should retain the discretion that it now has. The noble Baroness's amendment, which is very well intended, would fetter that discretion too much.

Baroness Falkner of Margravine: My Lords, I am heartened by how many noble Lords have spoken to this amendment and I hear what they have said. The Minister is right that we have a fundamental difference of approach and he is right in interpreting my motivations in this area. We believe that there are still too many children—the emphasis is on children—going into custody who should not be incarcerated by the state. The state has a particular duty in this regard, because children should be treated differently from adults. International human rights law, which we have signed up to, says that in terms. The Joint Committee on Human Rights, in its report in January 2008, said that,
	"the provision in the Criminal Justice Act restricting the use of custody is a general restriction applying to all offenders, rather than one aimed at ensuring that custody is only ever used as a genuinely last resort in relation to juveniles. In our view, a much more specific safeguard is required in order to ensure that the obligation in Article 37(b)",
	of the Convention on the Rights of the Child,
	"is properly implemented".
	So we have fine words, but perhaps less fine action.
	I say to the noble Lord, Lord Monson, that, in addition to what my noble friend Lord Thomas of Gresford said about courts having to use discretion and judgment on a regular basis, the custody threshold, such as it exists in Section 152(2) of the Criminal Justice Act 2003, has as its factor for consideration the seriousness of the offence. We argue that that is also a discretionary judgment and that the threshold itself is meaningless without it. Here we have tried, by bringing in a person's age and circumstances, to help to elucidate the circumstances that might affect that person appearing before the courts.
	As I said, I am heartened by the general thrust of this debate. I hope that the Minister will have heard what other noble Lords said about the motivations behind the amendment. On that basis, I hope that he will reflect and perhaps come back to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 46 not moved.]

Lord Thomas of Gresford: moved Amendment No. 47:
	After Clause 9, insert the following new Clause—
	"Principle aim of the youth justice system
	(1) Section 37 of the Crime and Disorder Act 1998 (c. 37) (aim of the youth justice system) is amended as follows.
	(2) For subsection (1) substitute—
	"(1) It shall be the principal aim of the youth justice system to promote the welfare of children and in so doing have particular regard to the need to prevent offending (including reoffending).""

Lord Thomas of Gresford: My Lords, your Lordships are aware that I have already spoken on this amendment, because it was grouped with the government amendments at the beginning of our deliberations today. I do not propose to rehearse again the arguments that I put at that time. I was grateful for the support I received from all quarters of the House for the amendment.
	There are one or two points to which I am entitled to reply that were made at that time—in particular, on the syntactical infelicity to which the noble and learned Lord, Lord Mayhew, referred. I do not think that there is such an infelicity. Proposed new subsection (2) says:
	"It shall be the principal aim of the youth justice system to promote the welfare of children and in so doing—"
	in other words, in so promoting—
	"have particular regard to the need to prevent offending (including reoffending)".
	All of us who have listened to today's debates will appreciate that it is very much the welfare of children that we have in mind and that if there is a promotion of the welfare of children it may well stop offending or reoffending in the way in which this amendment is phrased.
	The noble Lord, Lord Kingsland, was good enough to say that we confront Section 37 of the Crime and Disorder Act 1998, with which, he said, the law began to go wrong. I was interested to discover that the noble Lord, Lord Windlesham, who was in his place earlier today, said about the provision in the then Bill, at Second Reading in December 1997:
	"As far as I can tell, creation of a general duty is an innovation not to be found in other parts of the system of criminal justice. While it sounds desirable enough in principle, there may be difficulties in reconciling it with international treaty obligations on the rights of the child and there will be an awkward question to be faced as to whether or not it should extend to defence counsel in criminal proceedings. But they are good intentions and good intentions often have practical consequences which must then be faced and resolved in some way that is regarded as satisfactory to the legislature".—[Official Report, 16/12/97; col. 569.]
	There have been practical problems. In my earlier remarks, I outlined how the provisions in the 1998 Act has been overtaken by later legislation that has incorporated our duties and responsibilities under international treaties.
	What we are trying to do with his amendment is to rebalance the youth justice system so as to put the welfare of the child first and make it the purpose and principal aim of the statement of principle for the youth justice system as a whole. It is a principle that should not simply be confined to the court's sentencing and the purposes of the court in sentencing, to which Clause 9 refers. It should be a principle that applies across the board to every agency, whether it is the police, prison officers, youth offending teams, probation services and so on. I am interested to hear that a youth crime action plan is being proposed by the Government, in which no doubt those cross-agency problems will be addressed.
	I put the amendment forward for your Lordships' consideration in order to bring the 1998 Act up to date, having regard to the obligations of which I have spoken. I beg to move.

Baroness Butler-Sloss: My Lords, the amendment comes after Clause 9. On a technical point, is the part of Clause 9 that does not deal specifically with this intended to be interfered with?

Lord Thomas of Gresford: No, my Lords.

Lord Hunt of Kings Heath: My Lords, the noble Lord, Lord Thomas, invitingly asks me to respond, but we had a very full debate on this group. Noble Lords will know that the House has kindly accepted the government amendment, which seeks to ensure that there is no hierarchy when it comes to the matters to which the court has to have regard, as it was thought there was by some noble Lords in Committee. I hope that noble Lords will consider that the government amendment properly deals with concerns that many noble Lords have.

Lord Thomas of Gresford: My Lords, we feel very strongly on these Benches on this issue. We feel that it is time to rebalance and bring up to date the youth justice system, so I intend to test the opinion of the House.

On Question, Whether the said amendment (No. 47) shall be agreed to?
	Their Lordships divided: Contents, 57; Not-Contents, 117.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 10 [Abolition of suspended sentences for summary offences]:

Lord Kingsland: moved Amendment No. 48:
	Clause 10, leave out Clause 10

Lord Kingsland: My Lords, this amendment was thoroughly debated in Committee. Therefore, I can be reasonably telegraphic in introducing it again at Report. Clause 10 proposes that suspended sentences cannot be ordered for summary offences heard in magistrates' courts. The Government's argument for advancing that is that if the option to issue a suspended sentence is denied the court, it will impose a community sentence, thereby assisting the Government in their well known difficulties with prison overcrowding.
	In our view, the inference is illusory. When one is dealing with a suspended prison sentence, as your Lordships know, one is dealing with an offence that has passed the custody threshold. This follows from guidance issued by the Sentencing Guidelines Council, as I indicated in Committee. At page 24 of the guidance, the Sentencing Guidelines Council sets out the questions that the court should ask itself. First, has the custody threshold been passed? Secondly, if so, is it unavoidable that a custodial sentence be imposed? Thirdly, if so, can that sentence be suspended? Thus, if a court concludes that a custodial sentence should be imposed and if the option of a suspended sentence is removed, as the Government so intend, prison is inevitable. Removing the power of magistrates to use suspended sentences for summary offences would have the opposite effect to that intended by the Government: it would increase the prison population, not reduce it. I beg to move.

Lord Thomas of Gresford: My Lords, I spoke at length on this amendment in Committee and I do not propose to repeat what I said at that time save to say that we support the stance of the noble Lord, Lord Kingsland.

Lord Lloyd of Berwick: My Lords, I did not speak on this in Committee, but I found the inexorable logic of the argument of the noble Lord, Lord Kingsland, irresistible.

Baroness Butler-Sloss: My Lords, I also share the view of the noble Lords, Lord Kingsland and Lord Thomas of Gresford, and the noble and learned Lord, Lord Lloyd of Berwick. The Government are going down the wrong path. They will not get a community sentence out of the absence of a suspended sentence because the point has been crossed, as the noble Lord, Lord Kingsland, pointed out from the sentencing guidelines. Therefore, whatever else may be said, if you cannot have a suspended sentence you will just carry on filling up the prisons.

Lord Elystan-Morgan: My Lords, the clear purpose of the provision in the Bill is to reduce the prison population. That is a laudable objective, but I have the gravest doubts about whether that can be achieved by the risk that the Government are taking with regard to this provision. Indeed, in all likelihood it will have the opposite effect. I referred in Committee and I will do so again to what happened in the Home Office 40 years ago when I was a junior Minister, which rather dates one. A careful analysis was carried out of the effect of suspended sentences under the Criminal Justice Act 1967 after the Act had been in force for 12 months or so. The objective of the Act, among many other things, was to try to reduce the number of prison sentences.
	The figures were something like this. The number of prison sentences remained exactly the same. The number of fines fell by about 18,000. The number of suspended sentences was about 18,000. In other words, one could never prognosticate nor indeed have any confidence in exactly how courts, particularly magistrates' courts, will react to such a situation. That is in no way pejorative of magistrates' courts. There are petty sessional divisions that are apparently very similar socially but that have entirely different sentencing policies. There is therefore every likelihood that the ironic consequence of this provision will be to increase the prison population rather than reduce it.
	There is one other reason why this clause should not be allowed to proceed. There is real merit in having the power to suspend for relatively innocuous offences, or let us say offences that are not of the highest rank of seriousness. Like so many other sentencers, I have often looked at a person's antecedents and seen how he or she was dealt with most leniently four, six or eight times before, and then seen a chasm where a very serious sentence had suddenly to be imposed. One often wonders what would have happened to that person if a shot across the bows by way of a suspended sentence had been fired much earlier in their criminal career.
	As for the logic of the situation, much as I respect the normally unremitting and perfect logic of the noble Lord, Lord Kingsland, I think that one might make this distinction. In so far as there is reference to crossing the threshold of custody and whether the case merits imprisonment, that is a decision for a sentencing court. Of course the decision whether one suspends a sentence is a decision for the sentencing court by definition; but actually it is a sentencing court sitting as a parole board. It has already sent the person to prison in its mind, and then one second later it reconstitutes itself as a parole board and asks whether it is necessary for that sentence to be served. I think that there is that justification for what might seem a matter of rather slick mental gymnastics.
	I simply ask the Minister—who has been most accommodating on all the points raised on the Bill—to consider that the Government might be wrong on this matter and that an unnecessary risk is being run.

Viscount Tenby: My Lords, I warmly support the amendment. I declare an interest as a magistrate for 25 years. I also apologise to the House because I was not able to take part in Committee on this matter. I promise that I will not make a Committee speech. I agree with the comments made. One point which perhaps has not been made is that the provision removes discretion from the magistrates' court. It chips away at an institution that has served the British legal and judicial system very well over the years. The fact is that the suspended sentence is an extremely valuable sentence. I remember that it was in disfavour in the 1980s and it was suggested to us that we should not impose it, but we would have given our eye teeth for the ability to impose it. It is a sword of Damocles hanging over someone to ensure that they do not step out of line. It is an absolutely perfect way of administering justice.
	Like all noble Lords who have spoken so far, I think that the provision will have the reverse effect. If magistrates are unable to impose a suspended sentence they will look for another disposal. It should not be assumed that it will automatically be a community order or fine; it may well be a custodial order. I therefore invite the House to support the amendment.

Lord Mayhew of Twysden: My Lords, it is relevant to point out what the Magistrates' Association has said about this proposal in Clause 10. It has said:
	"We believe that research into SSOs"—
	suspended sentence orders—"made since April 2005", when they were conferred to this extent on magistrates,
	"has not been sufficiently robust yet to show that it is SSOs that have, or will have, a significant impact on the prison population. On the contrary, it may well be that an SSO impacts less on the prison and probation services and resources than either an immediate custodial sentence or a high level community order with a greater number of requirements".
	In the course of these debates we have all expressed our admiration for the magistrates and our belief in the importance of not fettering unnecessarily the discretion of the judiciary—to use a phrase used only an hour ago by the Minister. Surely it is very important to remember that the Magistrates' Association has said:
	"We can see no logical or good reason for this proposal".
	Surely that must cause the Government to think again.

Lord Ramsbotham: My Lords, I, too, support the amendment, for another practical reason. I am concerned that there are not enough resources to provide enough community sentences. We have been talking about more and more being put in. To suggest this on top of everything else seems impractical, because I very much doubt that the resources will be available to do as the clause seeks.

Lord Bach: My Lords, let me do my best. To start off with, I remind noble Lords that we are seeking in Clause 10 to remove the rights for summary offences to be dealt with by suspended sentence orders; we are not for a moment trying to remove the right to use suspended sentence orders for either-way offences, let alone indictable offences. We are talking about summary offences only. Let me make clear our premise. The courts are in practice using the new suspended sentence—which came in on 1 April 2005—for substantial numbers of summary cases which would previously have received non-custodial sentences. The courts have made substantial use of the orders since their introduction. There has, however, been no commensurate drop in the use of the immediate custodial sentence. Suspended sentences are therefore not being imposed instead of immediate custody.
	Let me go through the figures. Comparison of the confirmed sentencing figures for all courts for 2006, after the legislation came in, and those for 2004, before it came in, show that the immediate custody rate has remained stable at just under 7 per cent, whereas the usage of suspended sentences has increased from 0.2 per cent in 2004 to 2.4 per cent in 2006. The number of suspended supervision orders has increased from 2,900 to 33,500, 12,700 of which were for summary offences as against 700 in 2004. The figures for the magistrates' courts alone may be even more significant. A comparison of 2004 and 2006 shows that the immediate custody rate has remained stable at 4 per cent whereas the usage of suspended sentences has increased from 0.1 per cent in 2004 to 1.7 per cent in 2006. The actual numbers increased from 1,300 to 23,300. Some 12,400 of that number were for summary offences, as against 700 in 2004 before the Act came into force. For summary offences sentenced in the magistrates' courts alone there was a slight drop in the immediate custody rate, from 2.1 per cent to 1.9 per cent. However, the rate of use of suspended sentences shows a much greater increase of 0.1 per cent, to 1.1 per cent.
	As I said, we do not believe that that is due to a change in the seriousness of offences. The only explanation offered in Committee was that there had somehow been a sudden increase in the seriousness of offences so that the number of suspended sentences shot up even though the number of those going to prison remained the same. We are not aware of any evidence that there has been a sudden change in the seriousness of offences. It seems to us very unlikely that such a change would coincide exactly with the availability of the new suspended sentence. It also seems implausible that any such increase in seriousness would coincide so exactly with the availability of the new suspended sentence. In fact, use of immediate custody for summary-only offences in the magistrates' courts has been fairly stable at around 2 per cent for the last 10 years, up to and including 2006, which would appear to argue against an increase in seriousness in recent years.
	The implausibility is twofold. First, it seems implausible that an increase in seriousness has occurred specifically to coincide with the introduction of the new suspended sentence. Secondly, it seems implausible that such an increase would manifest itself by moving offences from community disposals to suspended sentence orders, but that no significant proportion of offences would justify a move up to immediate custody.
	Those who support the amendment have to say what explanation there can be for these figures—which are unchallenged, as I understand it—other than our explanation, which is that these sentences have been used, not altogether but largely, in place of what would otherwise have been community orders.
	We believe it is very much more likely that magistrates have not maintained the previous custody threshold. It is one thing to say that magistrates should go through a simple logical process whereby they simply label an offence as being one side or another of the custodial threshold, in complete isolation from consideration of the sentencing options. I intend no disrespect to any court, let alone magistrates' courts, but we all know that this is a grey area, as the noble and learned Lord the Lord Chief Justice has acknowledged, where a prison sentence might or might not be appropriate for an offender, and with these offenders it is difficult to consider the question in isolation from the available options.
	The noble and learned Lord the Lord Chief Justice said on 15 November 2007:
	"The seriousness of the offence determines whether it crosses what is known as the 'custody threshold', but factors personal to the offender can justify the court in passing a non-custodial sentence even where the custodial threshold is crossed. In practice there is quite a wide border-line area where it is open to the court to choose between sending the offender to prison or dealing with him in some other way. This is particularly true in the case of Magistrates".
	I think that was the point that the noble Lord, Lord Elystan-Morgan, was making.
	A suspended sentence, intuitively, is different from an immediate custodial sentence where the offender has no opportunity to avoid the clanging of the gates—prison. Introducing a freely available suspended sentence, which was intended to be a useful tool to the courts as an alternative to custody, has in fact—I maintain that the figures show this—had the unforeseen effect of blurring the level of the custodial threshold.
	But in any event, if the suspended sentence is no longer available for summary offences, courts will impose an immediate custodial sentence only in those cases where they are clear that they have no alternative, and in other cases they will use community disposals. Under these circumstances we believe that the custodial threshold is likely to revert to something close to its previous level.
	To support the case that I am putting, I pray in aid the fact that the chief executive of NACRO, Paul Cavadino, agreed precisely with the point that I just made. The noble Baroness, Lady Stern, was a director of NACRO for many years. It is a very well respected organisation. In other words, Paul Cavadino should know what is happening. He said:
	"Restricting suspended sentences to more serious offences should help to avoid the 'boomerang' effect of these sentences which is boosting the prison population. This happens when courts pass suspended prison sentences on offenders who would not otherwise have been jailed and then activate them on top of a new penalty if the offender returns to court".
	Not all suspended sentences are successful, if that is not already obvious. When a suspended sentence is given, in as many as 30 per cent of cases the offender, alas, offends again and is then liable to a longer period of imprisonment for his original offence and for the new offence.
	In a newsletter of May 2007 the Sentencing Guidelines Council said that the number of suspended sentences rose steadily between 2004 and 2005, that provisional figures for 2006 show a much more rapid increase and that the information available to the council and the panel appears to indicate that this increase has been accompanied more—I stress "more"—by a reduction in the number of community orders than in the number of custodial sentences. Therefore, having seen the operation of this new change, the Sentencing Guidelines Council came to the view that the case we are putting today is more likely to be true than the opposite.
	I have spoken to the noble Lord, Lord Dholakia, and told him that I wished to quote from his Second Reading speech. He is a most distinguished Member of your Lordships' House who has gained great expertise in this field over many years. I stress that he was speaking from the Back Benches when he said:
	"The Bill provides for the restriction of suspended sentences to indictable offences and those that can be tried either way. There is evidence that courts too often pass suspended sentences where they could have passed a community sentence. Even where courts use the suspended sentence properly to replace an immediate jail sentence, they often fix suspended periods of imprisonment longer than the immediate prison sentence that they would otherwise have passed. If the criminal reoffends and the sentence is activated, the offender is imprisoned for longer than if he had received an immediate prison sentence in the first place. Let us hope that the Bill will at least limit this damage by prohibiting the passing of suspended sentences for minor summary offences".—[Official Report, 22/01/08; col. 163.]
	It is only that which the Government seek to do—to prohibit the passing of suspended sentences for minor, summary offences.
	If there is concern about the supervision aspect, I should say that all conditions that can be imposed under a suspended sentence can be imposed under a community order without adverse effect on the prison population. It is our firm belief that if we do not introduce Clause 10, the courts will continue to impose suspended sentence orders where they would previously have used community orders. The results of that, ultimately, would be that around 400 people—I want to be very careful with figures here because there is no way of proving the point as I am referring to the future rather than the past—would end up in prison who would not be there if we remove the suspended sentence for summary-only offences. I have spoken for some time but this is a serious matter. I ask the noble Lord to consider withdrawing the amendment—

Lord Elystan-Morgan: My Lords, bearing in mind the fact that the new provisions have been operating only for a short period, as the Minister said, was any effort made to cure the situation if, in fact, there is a problem—I accept his argument for a moment—by giving strong advice to magistrates? If not, how can the Government say that they do not trust magistrates as regards suspended sentences yet trust them as regards custodial sentences? If they are totally unable to analyse the situation in relation in one area, how are they competent to deal with it in the other?

Lord Bach: My Lords, Governments of whatever colour are always extremely careful not to go beyond what they are entitled to do in terms of advising on sentencing. I do not know, I have to say, what approaches have been made to magistrates from the Government in relation to what we feel is happening. But no great criticism of magistrates is intended in anything that I have said or in what the Government intend.
	If I am right about the custody threshold being a greyer area than we sometimes like to think when we are debating these points, or a greyer area than what the textbooks say, it is hardly surprising that where there is a possibility of a suspended sentence, those who are able to impose one will do so just to try to give a bit more force to their sentence at the time, perhaps to frighten an offender in the best possible way. That is exactly the way that the noble Lord himself used to pass suspended sentences. But if the consequence of suspended sentences is that people come back in large proportions and have to be sent to prison—that is what should happen if a suspended sentence is broken—the problem is that the prison sentence increases, rather than decreases.
	I am advised that the magistrates have already received strong advice in sentencing guidelines. That has been pointed out. The statute is clear. But the figures, I am afraid, speak for themselves, and unless there is a better explanation of those figures—and no one has come up with one yet—it would seem that this particular reform of 2003 has not worked.

Lord Kingsland: My Lords, I am most grateful to the Minister, who has characteristically given a full and earnest response to my amendment in his customary way. In fact, I can save myself most of the trouble in winding up, because the noble Lord, Lord Elystan-Morgan, said it all for me in the most telling way in his previous intervention.
	The Government can reasonably be accused in a phrase that the noble Lord, Lord Ramsbotham, has often used—"order, counter-order, disorder". The Government have only recently introduced these changes. They have decided after a very short period that the changes are not working and to reverse rules that they made only a few years ago. Quite apart from the uncertainty of the statistics, the very least that your Lordships' House can ask of the Government is to give the present system a chance to see whether it could work.
	Perhaps I may say, with enormous respect to the noble Lord, that some of the observations that he made about the conduct of magistrates in their courts are rather unfair. Magistrates are bound by the sentencing guidelines. They have to follow them. The sentencing guidelines are crystal clear about the circumstances in which suspended sentences can be applied. Is he suggesting that magistrates are now breaking those rules for some reason? I am sure that he is not, or I am sure that he did not intend to suggest that. The case for our position is quite irrefutable and for those reasons I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 48) shall be agreed to?
	Their Lordships divided: Contents, 147; Not-Contents, 106.

Resolved in the affirmative, and amendment agreed to accordingly.
	Clause 12 [Restriction on power to make a community order]:

Lord Hunt of Kings Heath: moved Amendments Nos. 49 to 51:
	Clause 12, page 9, line 5, leave out from "offence" to end of line 10 and insert "("the current offence") committed by a person to whom subsection (1) or (1A) applies"."
	Clause 12, page 9, line 12, leave out paragraph (a) and insert—
	"(a) for "Subsection (2) applies where" substitute "This subsection applies to the offender if—"(za) the current offence is punishable with imprisonment;";"
	Clause 12, page 9, line 19, leave out from beginning to end of line 20 and insert—
	"(1A) This subsection applies to the offender if—
	( ) the current offence is not punishable with imprisonment;"
	On Question, amendments agreed to.
	Clause 13 [Sentences of imprisonment for public protection]:

Baroness Gould of Potternewton: My Lords, before I call Amendment No. 52, I have to inform your Lordships that if it is carried, I cannot call Amendment No. 53 for reasons of pre-emption.

Lord Kingsland: moved Amendment No. 52:
	Clause 13, page 9, leave out lines 41 and 42

Lord Kingsland: My Lords, Amendment No. 52 brings us to IPPs, which will also be the subject of later groupings. Before I introduce the amendment, I make it clear to your Lordships that I entirely accept that there is a real problem with IPPs and prison place availability. If you are in prison as a result of receiving an IPP and have served your minimum term, you cannot, as your Lordships well know, get out without having been through a period of rehabilitation and having demonstrated that you have—at least, to some degree—benefited from it.
	As we all know, the current situation in prisons is such that it is simply not possible to initiate rehabilitation schemes which meet the requirements of the law. As a result, there is growing frustration among prisoners who have received IPPs about their inability to have the opportunity to improve their lot. The problem is now deeply ingrained in all the associated difficulties of prison resources. Indeed, at the end of the Committee stage debate, the noble Lord, Lord Neill of Bladen, raised a very interesting question about the compatibility of the current state of prisons with the European Convention on Human Rights. His second point was that, if someone is awarded an IPP, what goes with it is a right to be rehabilitated. If that right is in practice, as he put it, a fiction, is that a denial of someone's human rights under the convention? That question was posed at the end of Committee and I should be most interested to know whether the Minister has managed to reflect on it between then and now.
	Perhaps I may introduce this matter again very briefly, because we had a long debate about it in Committee. As your Lordships are very well aware, the conditions for imposing an IPP are that, first, the crime must be one of 153 specified sexual or violent offences; secondly, the offence must be capable of attracting a sentence of 10 or more years of imprisonment; and, thirdly, the offender must pose a significant risk of causing death or serious injury by the commission of further offences. In such cases, the judge must impose an IPP and the offender must serve a minimum tariff before he can be considered for release; but, as I have already indicated, he can be held in custody for as long as he is considered to pose a threat to public security.
	The most recent figures indicate that at least half of all sentences given for threats to kill, child sex offences and sexual assault resulted in a tariff of less than two years. That means that, if the Government press ahead with their plans, those individuals will not be eligible for IPPs, given that their sentence length would be below the threshold that is to be introduced. I quite understand the convenience to the Government of seeking to legislate in that way, but judges sentence individuals to IPPs because they believe that they are dangerous. The assessment of danger is quite independent of the length of the sentence of imprisonment that judges give for the offence charged. They are not connected but are completely different exercises.
	Desirable though it may be to relieve the pressures of the IPP system, it should not be done by undermining the assessment of a judge that a particular person should receive an IPP because he represents a real threat. I repeat, the judge has to undertake two completely different exercises. On the one hand, there is the sentencing exercise and, on the other, the assessment of whether the individual is capable of being a threat to society. This is what we complain of. Whether the tariff is below or above two years, the judge faces exactly the same problem in either case. I beg to move.

Lord Lloyd of Berwick: My Lords, I am in the same difficulty as I was in Committee. If one leaves out proposed new subsection (3B)—the lines which the noble Lord, Lord Kingsland, suggests should be omitted—an indeterminate sentence could be imposed only where an offender has previously committed a very serious offence such as murder or rape, as set out in Schedule 6. There are 22 very serious offences as distinct from the 153 offences set out in the other schedule. The amendment would reduce the number of those for whom an indeterminate sentence would be available. That is my view of the effect of the noble Lord's amendment and I gather that it is shared by the Government. In the event that the amendment might succeed—I do not wish to be pre-empted—I had better develop my further argument on Amendment No. 53. What is the view of the House? I am giving the noble Lord a chance to say that he does not intend to press his amendment to a Division.

Lord Kingsland: My Lords, I do wish to press my amendment. The noble and learned Lord would, no doubt, not want the purity of his argument corrupted by the contents of my amendment. I respectfully suggest that he holds his fire until the next group of amendments, when he can put his always very welcome thoughts to your Lordships' House.

Baroness Butler-Sloss: My Lords, is it possible to deal with Amendment No. 53 if Amendment No. 52 is passed?

Lord Lloyd of Berwick: My Lords, that is my point.

Baroness Butler-Sloss: My Lords, as I understand it, I do not think that the noble and learned Lord can wait for the next group.

Lord Hunt of Kings Heath: My Lords, I think it was made clear that if the amendment in the name of the noble Lord, Lord Kingsland, were passed, the noble and learned Lord, Lord Lloyd, would not be able to move his Amendment No. 53. That is my understanding of the position. This is Report stage, not Committee. The noble Lord might address whether he agrees that his amendment does not actually achieve what we think he wants to achieve, as that is causing the problem.

Lord Kingsland: My Lords, that is not our view. This amendment came from another place; another place has looked at the speech of the noble and learned Lord, Lord Lloyd, and at the Minister's letter, and the view is retained that the amendment achieves what it sets out to do. I know that that is not the Government's view but it is the view that I must sustain at the Dispatch Box.

Lord Lloyd of Berwick: My Lords, it seems as though I must now address my amendments, which I am very happy to do. In doing so, perhaps I could also address Amendments Nos. 57 and 58, under other clauses, which relate to extended sentences. It will save time if I deal with them together because they relate to the same point. The noble Lord knows the arguments which I wish to advance, so I can be brief.
	Everyone accepts that it is the duty of the Government to protect the public, in so far as the public can be protected, from very dangerous offenders. That was the purpose of Section 225 of the 2003 Act. However, the Government now accept that the provisions in Section 225 of the 2003 Act have misfired. Mr David Hanson in the other place accepts that the provision no longer serves what he described as a proper purpose. It is not serving a proper purpose because it catches offenders who ought not to be caught; it is catching criminals who are guilty of quite minor offences of violence and yet are being made subject to indefinite sentences of imprisonment. As my noble friend Lady Stern said, it is catching children and subjecting them to indefinite sentences of imprisonment.
	As a consequence, there will soon be some 5,000 offenders serving indefinite sentences, which is far in excess of what was ever anticipated. The number is increasing at the rate of 1,800 a year, and it is estimated by the Home Office that it will exceed 12,000 by 2011. With a population of prisoners now estimated to exceed 85,000 by this time next year—the answer which the noble Lord gave in reply to my noble friend on Monday—it is quite clear that something has to be done urgently to inhibit any further increase in the number of those serving indeterminate sentences. That is the view of the Chief Inspector of Prisons in her recent report and the view of the noble Lord, Lord Carter of Coles. Happily, the Government have accepted that view and, as a result, Clause 30 will give judges a discretion whether to impose an indeterminate sentence or not. The word now is "may"—not "must". That is clearly a step in the right direction, for which we must all be grateful. Moreover, under Clause 13, indeterminate sentences will be available only where the tariff is two years or more, which is another step in the right direction. But it goes nothing like far enough to make any difference to the present problem of overcrowding.
	If we are to stop overcrowding getting worse, let alone reduce the present level of overcrowding, the indeterminate sentence must be reserved now for really serious offenders; in other words, those with tariffs of four years or more. And that is the purpose of my amendment. It will be said no doubt that whether one chooses two years or four is a matter of judgment. That is of course true, but the judgment should be based on facts and not on political expediency. The crucial fact here is the remorseless increase in the prison population.
	The indeterminate sentence is also a cause of great injustice. Those who have served their tariff sentence remain in prison indefinitely in the hope that they will in due course come before the Parole Board, but the Parole Board is already overstretched and its position will become a great deal worse during the coming year. That there are people in prison who are waiting to go before the Parole Board and who have served their tariff sentence is a possible cause of unrest in prisons.
	There are two reasons for supporting the amendment. In the first place, we can do something now about overcrowding and prevent a situation which is already bad getting worse. Secondly, we can do something to remedy a source of serious injustice to those who are serving these sentences.

Baroness Butler-Sloss: My Lords, I support the principle of the government amendment. I also support the further amendment of the noble and learned Lord, Lord Lloyd of Berwick, for the reasons which he gave. I was dismayed to hear the noble Lord, Lord Kingsland, suggest that there was no correlation between the sentence of imprisonment for an offence and the degree of danger. I find it improbable that somebody who was given a sentence of 28 days, which I understand was in one case given with an indeterminate sentence, was really so dangerous that they had to be kept in prison indefinitely, but their offence was so minor that it resulted in only 28 days. I understand that a considerable number of sentences have been very much less than one year. All of that leads me to think that the system as it has been working—and as I understand the Conservative Benches would wish it to work from the way in which they interpret their amendment—would allow 28 days to continue in the future, which is profoundly wrong. I strongly support the Government, but even more so the noble and learned Lord, Lord Lloyd of Berwick.

Lord Ramsbotham: My Lords, like my noble and learned friend, I support the spirit and principle of what the Government and my noble and learned friend Lord Lloyd have said. The key word in all this is surely "risk". There is no doubt that there are some people who go to prison who are such a risk to the public that their release must always be a matter for conjecture. If you talk to prison governors about the people who give them most concern, they invariably refer to paedophiles and sex offenders, for whom there is always going to be a doubt about whether they will be fit for return to society, not least because, tragically, many of them have an ambivalent view about what they have done, having themselves been victims. But that is not the subject of this amendment.
	We are clearing up yet another example of a knee-jerk introduction in the 2003 Act which was not subject to proper regulatory impact assessment. Although the introduction was right, the impact on the Prison Service has been disastrous, with vast numbers of people awaiting courses in order to be released. The impact has been disastrous, too, on the Parole Board, and it is only going to get worse. Therefore, while I entirely support the principle, it seems to me that what needs to be done is for us to look at what the impact of the proposed increase to four or seven years is assessed to be, but also at the impact on the Prison Service and Parole Board to see whether they can deliver what needs to be delivered to make the thing work. The whole system becomes discredited if it cannot do what it imposes in its Bills.

Lord Elystan-Morgan: My Lords, I support wholeheartedly the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick. There is every reason why the House should support the amendments. The Government are to be congratulated on their attitude to the relevant provisions of the Act of 2003. It is very proper that the matter should be left to general judicial discretion rather than be made mandatory. On the other hand, I say with the greatest respect that the Government are failing to be loyal to their own logic in setting a threshold that is much too low.
	It is obvious that there is a relationship between the initial sentence threshold and the risk. When a court is considering the risk, it should ask what the best evidence is. The best evidence is the offence with which it is dealing: it is what the man has done. Therefore, for all those reasons, the amendment should receive the wholehearted support of the House.

Lord Hunt of Kings Heath: My Lords, I wonder whether it would be for the convenience of the House if I posed a question to the noble and learned Lord, Lord Lloyd. It seems that he has grouped in this debate his Amendments Nos. 53, 55, 57 and 58. If that is so, might I respond to them? He of course reserves the right to put them to the vote when they are called. Would it be useful if I did that?

Lord Lloyd of Berwick: My Lords, that is entirely what I intended for the Minister to do.

Lord Hunt of Kings Heath: My Lords, I am most grateful to the noble and learned Lord. I asked the noble Lord, Lord Kingsland, what he thought about his own amendment, in a sense, because, as the noble and learned Lord, Lord Lloyd, suggested, and I said in Committee, we think that it would not achieve what he seeks, and would restrict IPPs in a way which he would not want. I think that there is general agreement about that.
	Clause 13 amends Section 225 of the Criminal Justice Act 2003 by setting out two new conditions, one of which must be met before the court can impose an IPP. One of those conditions is the two-year threshold; the other is a previous conviction for one of the shortlist of extremely serious offences set out in new Schedule 15A to the Criminal Justice Act 2003, which can be found in Schedule 5 to this Bill.
	The amendment of the noble Lord, Lord Kingsland, would remove entirely the threshold condition, in new subsection (3B), without making any further consequential amendment. It leaves the other condition intact. Our reading of it is that it leaves a statute whereby a court may impose an IPP where only the first condition is met; that is, that the offender must have a previous conviction for one of the shortlist of extremely serious offences set out in new Schedule 15A.
	A substantial number of IPPs have been given out by the courts. It was certainly not foreseen by the Government that high numbers of IPPs would be given with very short tariffs. I said in Committee that about 30 per cent of offenders receive a tariff of two years or less. The average tariff for all IPP sentences is 38 months and, as the noble and learned Baroness, Lady Butler-Sloss, said, the shortest tariff recorded so far is just 28 days. That clearly raises serious questions about whether the sentences can provide an appropriate degree of risk management for those offenders who have received only a very short tariff.
	On a practical level, as a number of noble Lords have already observed, such sentences can create great management difficulties. I do not need to go into great detail, but they present an enormous challenge to the service, which is a matter of considerable concern to noble Lords. Prison staff are under instructions to prioritise indeterminate sentence prisoners with short tariffs and to move them as quickly as possible to establishments where their offending behaviour needs can be addressed so that they can go through the structure and their case can then be considered appropriately by the Parole Board. We have also increased provision. The number of core offending behaviour courses has risen from 14,000 in 2004-05 to 18,000 in 2006-07, and additional funding has been given for the implementation of offender management in prisons.
	However, welcome as those improved measures are, they are clearly not enough to deal with the problem that we face. That is why we are proposing that the statute be changed to ensure that courts are able to make more targeted use of the sentences. The noble Lord, Lord Kingsland, suggested that the seriousness of the trigger offence bore no relation to the degree of risk presented by the offender. The noble and learned Baroness, Lady Butler-Sloss, responded in vigorous terms that I can only endorse. We think there is an association between the assessment of an offence and the risk of future offending and causing future harm, which is reflected in the sentence, although it is but one factor in the risk assessment undertaken in the courts.
	The noble Lord, Lord Kingsland, referred to the comments made by the noble Lord, Lord Neill. IPPs per se have not been held incompatible with the ECHR. We certified that they were compatible on introducing the 2003 Bill. The noble Lord, Lord Kingsland, may have had in mind the judgment in the Divisional Court in the case of Walker and James that the Secretary of State for Justice had acted irrationally in failing to provide the necessary resources to support the delivery of offending behaviour programmes for IPP prisoners so that they can be considered for release by the Parole Board as soon as their tariff has expired. The Court of Appeal upheld that judgment—I am sure the noble Lord, Lord Kingsland, knew that—and made a declaratory statement. It also indicated that if an IPP prisoner were held in custody for an unreasonably long time after a tariff that was not defined by the court, he would have a case for a judicial review under Articles 51 and 54 of the ECHR. Walker and James did not receive the remedy of release as they were not considered to have exceeded their tariff by an unreasonable time.
	As the noble Lord, Lord Kingsland, raised the question of risk, I shall point out that there is an exception to the seriousness threshold where offenders have previous convictions for certain very serious offences. We believe that in certain cases it may be advisable to impose a public protection sentence even though the threshold has not been reached for the current offence. Those cases are where an offender has already demonstrated that he or she is capable of very serious crimes. The relevant offences are those that invoke the "two strikes" or "automatic life" provision of the Powers of Criminal Courts (Sentencing) Act 2000, which was incorporated in 2005 into the dangerous offenders legislation. The list includes soliciting and conspiring to commit murder, manslaughter, grievous bodily harm with intent, robbery with firearm, and possession of firearm with criminal intent. The sexual offences covered are rape, rape of a child, and other offences involving very serious sexual activity without consent. These additional sexual offences were introduced in the Sexual Offences Act 2003. I should also make it clear that public protection sentences are not the only risk-management tool that protects the public from sexual and violent offenders. We believe that there is sufficient discretion and that the courts will still be able to give IPPs where they are needed.
	I listened with great care to the speech the noble and learned Lord, Lord Lloyd, made on his amendment. He welcomed the changes that the Government have put down, but would prefer to go further in the way that his amendment suggests. Rather like the debate on the custody threshold in relation to youth justice, it is a question of judgment whether the Government have this right or whether the noble and learned Lord has. He met my right honourable friend the Lord Chancellor to discuss this, which was very helpful, but after careful consideration we think that the minimum two years in custody is the most appropriate threshold because it equates to a headline sentence of four years. We do not think that is an inevitable sentence. It would be unusual to receive a four-year sentence for a trivial offence. We are trying to strike a balance between ruling out cases that are not serious enough to be considered in this light and allowing the court to detain worrying offenders, even if their immediate offence is not so serious as to deserve an extremely weighty sentence. Under the regime prior to the 2003 Act, four years was the cut-off point in length of sentence between the offender being automatically released at the half-way point and being released at the discretion of the Parole Board. Of course, we are now talking about a different system, but my reflection of the previous regime shows that four years with two years' actual custody was considered a threshold beyond which risk management came more into play, which is one of the rationales for the period that the Government have chosen.
	I realise that this is a matter of judgment. I understand that a number of noble Lords feel that we have not gone far enough. The noble Lord, Lord Kingsland, feels we have gone too far. I happily put the proposition that maybe we have the balance right. I hope that if he is determined to press his amendment to the vote, it will not receive the support of the House.

Baroness Butler-Sloss: My Lords, I may be a little slow on this, but is the sentence that we are talking about—two years—the sentence awarded by the court or the sentence served by the prisoner after whatever remission is appropriate?

Lord Hunt of Kings Heath: My Lords, the noble and learned Baroness could never be described as slow. It is the latter.

Lord Kingsland: My Lords, I am of course most grateful to all your Lordships who have participated in this debate and the Minister for his reply. I think that this is the first time that I have tabled an amendment during the course of this Bill that has been received with such universal obloquy. I very much respect the quality of the arguments that have been advanced against my case.
	Nevertheless, the Opposition take this matter extremely seriously and we continue to think—I say this despite the perspicacious observations made by the noble and learned Baroness, Lady Butler-Sloss—that judges conduct an entirely separate assessment between the sentencing assessment and the assessment of danger. For those reasons, we believe that the Government's approach in this case is wrong-headed. On that basis, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 52) shall be agreed to?
	Their Lordships divided: Contents, 41; Not-Contents, 121.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Bach: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that Report begin again not before 8.55 pm.

Moved accordingly, and, on Question, Motion agreed to.

Cycling

Lord Berkeley: asked Her Majesty's Government what policies they have adopted to promote the environmental and health benefits of cycling.
	My Lords, I am grateful for this opportunity to start a discussion in your Lordships' House about the environmental and health benefits of cycling.
	A large number of noble Lords cycle to, from or around here. I feel privileged to be followed by my noble friend Lord Young, who is a real professional cyclist. I believe he cycles from John O'Groats to Land's End and back in a couple of days or so. He is very impressive, and I am greatly looking forward to hearing what he has to say. I just cycle for business and a bit of pleasure, and I find it is a good way of getting around. I must present the apologies of the noble Lord, Lord Colwyn, who is another great cyclist from your Lordships' House. He has had a knee operation today to enable him to cycle better and, although he has been to the House, he has only just recovered from a general anaesthetic, so it is probably a good thing that he does not try to speak. I declare an interest as secretary of the All-Party Group on Cycling. We have our annual parliamentary bike ride on 10 June.
	Before I launch into what a great thing cycling can be, I congratulate the Minister on the Government's recent announcement. It is probably worth putting to bed something that comes up every time we have a debate on cycling: the vexed question of cyclists not obeying road signs or wearing lights. We must clearly deprecate any failure to obey the law. I certainly try to obey the law. That is not, however, a reason for knocking everything cycling, which one or two people occasionally do.
	I shall give a few facts and figures about the benefits of cycling, particularly to health and the environment. If one thinks about the number of car journeys under that most people make, an awful lot of them could be done on a bicycle. Sixty per cent of car trips are less than five miles, which can be done very quickly on a bicycle. Cycling is very good for you; I certainly feel fitter when I cycle. The Chief Medical Officer has said that adult cyclists can be as fit as someone 10 years younger and have a life expectancy of two years above the average. It is a good way to start thinking about cycling if you can behave as if you are 10 years younger and have an extra couple of years of life.
	There is, however, a ridiculous fluctuation in the number of people who cycle in different countries and different cities in Europe generally or in the UK. Apparently, only 2.8 per cent of commuters in this country cycle. In the Netherlands, it is 27 per cent. The Netherlands is fairly flat, but so is much of England. The difference is that the Netherlands has provision for cyclists that makes one feel safe. I shall return to the question of safety and fear, because fear is a serious disincentive. The UK has two major initiatives. One is from the Mayor of London, whose target to increase cycling by 80 per cent was reached in 2000, five years before the deadline. Cycling around London, one sees that there is still a variation in provision between boroughs, but, my goodness, it is a lot better than it was 10 years ago. There is safety in numbers in cycling. When there are 25 of you trying to get across Hyde Park Corner rather than just one, you feel a lot better and safer, even with the lights.
	Nationally—I am sure my noble friend will tell us more about this—the Government have increased the funding for cycling to £140 million in the next three years, which is fantastic. Again, there is a terrible variation in provision between some local authorities. I believe that some of them spend only about a £1 a head on cycling, whereas £5 to £10 a head is spent in the Netherlands, Germany and, I suspect, in Denmark. It may interest noble Lords to know that Copenhagen—I have seen a lovely report about cycling in Copenhagen—is going to increase cycling by 10 per cent, which will reduce the years of prolonged severe illness by 46,000, save £5.5 million annually and reduce the number of sick days overall by more than 3 per cent. That is worth having. Copenhagen claims that this will mean an extra 61,000 years of life—I am not sure what that means individually, but it is still pretty good—and will save 80,000 tonnes of CO2 each year. This is all at a cost of about £15 million, which is a tenth of what the Government are putting into cycling for the whole country. It is not unachievable and is of the same order of magnitude as the campaign that I am sure my noble friend will tell us about.
	The Copenhagen initiative is a campaign to make cyclists feel safer. There will be more cycle tracks and all the usual things as well as better behaviour, which is not a bad thing at all. The key, however, is to make the cyclist feel safer, which I shall focus on for a bit. I certainly find that fear is a great disincentive to cycling—my wife finds it even more so—and I am afraid that that is largely due to the speed of the traffic on the road that you are on and the distance from that traffic that you are forced to be. If you have a cycle lane, that is absolutely fine. If not, a 15 mile an hour speed limit is wonderful. A 30 mile an hour speed limit is probably better. When the speed limit gets up to 40 and 50 miles an hour, one thinks seriously about going on the road at all and tries to find a footpath. You are much more likely to get killed if you are hit by a car going faster. Cars have less room for manoeuvre, even if they are concentrating.
	There is a lack of good design in many cycling facilities. The worst cycling facility that I have come across is somewhere in Belgravia, where Westminster City Council has put in a chicane, especially for cyclists, with lovely granite kerbs. You have to slow to about 5 miles an hour even when there is a green light. Why bother? The council has clearly not thought about the design at all. The other point about design is that we really must look at journeys holistically. It is fine having a great cycle lane when you want to go across London, but if you cannot get across Hyde Park Corner—which is a bad example because you can get across most places quite well now—you are not going to do it. There must be a proper and consistent series of cycle routes. There is largely such a series in London, but not in many other places.
	To return to the point about speed limits, the 20 mile an hour zones in Hull, which are one example of good practice, have resulted in a 90 per cent reduction in the number of those killed and seriously injured. Residents also like a 20 mile an hour speed limit. I know that not all motorists like it, but a network of roads in the city with a 20 mile an hour speed limit should be encouraged.
	Lastly, I make a plea to the Minister. Lorries are bigger than cars, and their size makes them particularly dangerous for cyclists, especially when they turn left. We have had a lot of publicity about this recently. I do not like longer and heavier lorries, and I hope that the Minister can give me some comfort that the Government are not about to introduce them. However, March 2009 is the European Commission deadline for fixing safety mirrors on lorries so that drivers have a chance to see all around their lorry, especially the side that they are not driving on. Will the Government require them to be fitted retrospectively? If not, we would be in trouble and the blind side of the lorry would be a serious problem for cyclists.
	In conclusion, I hope that the Government will look at road use holistically when they are getting others to spend this £140 million, which is really welcome. There are great gains for the environment and health, but I still worry about the fear factor which can be mitigated by design and speed. Unlike car and lorry drivers, cyclists are not protected. As a number of officials and Ministers have done already, I hope that the Government will continue to look at best practice in Copenhagen, Amsterdam or wherever. The potential for increasing the proportion of people who cycle is enormous and the more of us who cycle, the safer we feel as a bunch. There is a bit of a herd instinct.

Lord Young of Norwood Green: My Lords, I congratulate my noble friend Lord Berkeley on obtaining this debate on an issue which I feel can make a positive contribution to the health of the nation when looked at in its widest context. I declare an interest in that I am a keen cyclist. I would not describe myself as a professional cyclist, which would be taking it a bit too far. For me, 2004 was a special year. I entered this House and I also cycled from Land's End to John O'Groats with a friend. We did 1,012 miles in 21 days, which was not the most direct route and certainly was not done in the fastest time. But it was a great way to experience the state of the roads and to test how integrated the transport system is as a whole. We also experienced the good, the bad and the ugly of British bed-and-breakfast accommodation and the joys of the Youth Hostel Association. Last year, we toured the Western Isles and I occasionally cycle to the House from my home in Southall, a distance of 12 miles through busy, London traffic. I bring to this debate current experience of what it is like to cycle all over the UK.
	Some cyclists—it was in the news recently—have a reputation for going through red lights and even for cycling down one-way streets, and some cycle recklessly on pavements. Clearly that is not acceptable behaviour, but we need to get it into perspective. It is rare for pedestrians to be injured or killed by cyclists. However, when cycling, the behaviour of many drivers leaves a lot to be desired. They have a desperate desire to overtake anything and everything, whatever the circumstances. They will drive frighteningly near cyclists, which adds to the climate of anxiety to which my noble friend Lord Berkeley referred. Being in a cycle lane, which is just a painted area of the road, does not afford the cyclist much protection.
	The state of the roads is another disincentive to cycling. More and more one finds significantly large potholes. Cyclists need to look ahead, because if they do not it is not just the wheel of their bike that will be bent, it will be a part of their anatomy as well. Sometimes potholes are left unrepaired not just for months but for more than a year. It is important for the Minister to encourage local authorities to understand that cyclists need a safe environment, and that includes the state of the roads.
	Many more people might consider cycling to work or taking their bike on holiday if they could use the train, but facilities are minimal. If trying to organise taking your bike on a train, you will have to plan a long time in advance. The facilities are minimal. If using your bike for work, it is at risk of vandalism or theft if you have to leave it at a station without lock-up facilities.
	I welcome the Department for Transport report, A Sustainable Future for Cycling, which was published in January. I have not had the chance to read it perhaps as closely as I would like, but, if it has a gap, I did not notice a reference to an integrated transport approach, which we need on cycling. It is no good looking at cycling on its own. It should be part of an integrated approach to transport. As my noble friend Lord Berkeley said, I, too, welcome the three-year budget of £140 million for Cycling England. There are some interesting elements in the programme. For example, the report states:
	"500,000 Year 6 children (10 year olds) will be to take part in a Bikeability cycle training by 2012, equipping them to cycle safely and responsibly".
	It is really good to encourage the next generation of young cyclists to cycle safely and responsibly on the road.
	The infrastructure programme will deliver 250 additional links to schools. Up to 11 new demonstration areas and six demonstration towns will have their own projects to encourage cycling in towns. These are really good developments. A Sustainable Future for Cyclingalso states that the infrastructure programme will also deliver:
	"Doubling the number of 'cycling to school' champions from 20 to around 40 who [will work] with schools",
	and,
	"Development of a number of smaller programmes to get more people cycling".
	Many people may think that £140 million is quite a lot of money for what they consider to be a niche area. But if we look at the cost-benefit ratio, for every £1 spent on the programme, the Government expect benefits of £3.20, which is a good return on the investment.
	If one asks the average person his or her perception of how safe it is to cycle on the roads these days, given the increase in traffic, I think that most people would feel that it is less safe. Interestingly, statistics give a different story. It does not mean that there is any room for complacency, but, while it is true that cyclists are more at risk of being killed or seriously injured than motorists—a rather obvious statement—the number of cyclists killed or seriously injured in 2006 was 35 per cent lower than the 1994-98 average.
	It is important to make drivers more aware of cyclists. Very often cyclists feel that drivers do not care or are blissfully ignorant of people on two wheels using the road. I welcome the fact that driver testing and training has been improved to encourage more awareness of vulnerable road users. How much of that is incorporated in the driving test, I am not sure.
	A Sustainable Future for Cycling makes a valid point when it states that cyclists also need,
	"to take steps to reduce the likelihood or consequences of an accident by wearing high visibility clothing and cycle helmets".
	I must admit that too often I see the "near invisible cyclist" at night. They have no lights and dark clothing, and clearly have a bit of a death wish. Educating cyclists is as important as educating motorists.
	The CTC, the cyclists' touring club, has suggested that 20 miles per hour should be the default urban speed limit. I have no doubt that motorists would see that as a severe attack on their liberty. It is interesting that the CTC states:
	"20 mph zones in Hull have resulted in 90% falls in killed and seriously injured from collisions. 20 mph limits are strongly supported by residents and evidence from Germany indicates that they result in an increase in walking and cycling".
	The Government should seriously consider that.
	The CTC also proposes that we should:
	"'Health check' every transport and land use decision. Ensuring that houses and services are planned to minimise travel and maximise access by walking and cycling has a major contribution to public health".
	So the Government should promote walking and cycling as a key part of their plans.
	If we have to assess the contribution of the Government, overall they are doing a good job of promoting the benefits of cycling, but in terms of whether we yet have a truly integrated transport that sees road, rail and cycling as a whole, I am not convinced. I will welcome the Minister's comments on that. Again, I thank my noble friend Lord Berkeley for giving us this opportunity.

Lord Haskel: My Lords, I thank noble Lords for letting me speak in the gap. I have been a cyclist for many years and I am very enthusiastic about it. I feel quite strongly about the value and benefit of cycling. On the question of health, I agree entirely with my noble friend. Fitness, exercise and well-being are wonderful benefits of cycling. An important point to make about cycling is that you can do it until late in life. Cycling is intergenerational and can be done for an awfully long time. I welcome the fact that even though, dare I say it, I am now in my mid-70s, I can still cycle regularly. I hope that the knee problems of the noble Lord, Lord Colwyn, are not caused by cycling. I have always considered that one of the advantages of cycling is that it is much easier on your knees and ankles than running or other sports. It is very important that you can cycle until late in life.
	The advantages for the environment, about which both my noble friends spoke, are obvious. The problem is, of course, how to get more people cycling. In urban areas the answer is to make it safer and speedier. I congratulate Sustrans, the CTC and some local authorities on their work to provide safer routes to school, to work, to the railway and bus stations and to the shops. However, the lanes have to be properly designated. They need to be more than just white lines painted on the road. Even little bits of rubber nailed into the road surface so that drivers know that they have strayed into the cycle lane when they feel a bump, as exist in Paris, would be a great help.
	To make cycling safer and quicker, the cycle lanes have to be continuous. My noble friend Lord Berkeley talked about the cycle lanes in London, many of which are good, but the trouble is that some of them end when you get to a difficult junction, which is the very time when you need a dedicated lane. This is what makes people cycle on the footpath, go against a red light or ride down a one-way street—not that I have ever done those things, of course.
	We ought to give some sort of priority to cyclists or reduce road speeds. One of the pleasures of cycling in Belgium, Holland or Denmark is that motorists give priority to cyclists. There are teeth-like marks on the road and motorists stop to give priority to cyclists. That is one reason why many more people cycle in those countries. That sort of culture would be a big help. Moreover, people are not tempted to go against the Highway Code.
	I agree with my noble friend that we need an integrated system, an important element of which is being able to book your bike on to the train. Some railway companies provide a booking service, but many do not. Every May bank holiday I go with a small group of elderly people on a trip to France. We take the ferry from Dover, but to get to and return from the port we have to take the car. We do that because a whole group of cyclists may come off the boat and take up the few spaces available on the train. You could be stuck in Dover with your bicycle for a day or two because there are only three or four bike places on each train. A group of, say, boy scouts would take up all the spaces and you are then stuck. Indeed, that once happened to us. We have to take the car down to the ferry in order to get home. If people could book their bikes on to the trains, that problem would be avoided. It is an important point about integrated cycling.
	I welcome the investments into and the promotion of cycling being undertaken by the Government. I have gone over my time, so I shall sit down. I see that the Whip is very pleased at that.

Viscount Falkland: My Lords, I am not a Whip; I am revisiting ancient times because no one else was prepared to speak on cycling. I have been cycling all my life, but more particularly for the past nine years since I was diagnosed with diabetes. At the time I was three stone overweight and I was told that I had to do something about the way I conducted my life. I have done that and kept my weight down, mostly thanks to cycling.
	I cycle in London whenever I can. I come in in the mornings—this shows what we leisurely Peers who do not have to go to offices do in the mornings. I also come in on my motorcycle, which may be of interest to noble Lords. According to the newspapers, the two enemies on the roads are motorcyclists and bicyclists. I do not see that. I ride a motorcycle and a bicycle and the greatest problem, apart from the lorries—despite the mirrors, which I understand in many cases have been provided free—are pedestrians in London. Pedestrians, whether natives or tourists, seem to look with puzzlement at pedestrian lights, and there is a certain aggression. The other night I cycled down a street in Piccadilly with the lights in my favour, but the pedestrians were streaming across the road. I threaded my way through them carefully but I was called all kinds of names beginning with B and C, which I would not repeat in your Lordships' House.
	Speaking personally on the health aspect, I can say that for someone with my condition cycling is probably the very best exercise. Every six months I go for a check-up with my diabetes specialist. He has told me that I am the only one of his patients who cycles regularly, which is because of the fear factor that the noble Lord, Lord Berkeley, described. My doctor said that he would cycle to his clinic in Marylebone High Street if he felt that he could arrive safely. He has also said that I am more likely to die cheerfully as a result of falling off my bicycle than by succumbing to the effects of diabetes or cardiovascular disease.
	I am very careful on my bicycle and I have to say that I am pretty horrified at the standard of riding demonstrated by most other cyclists. I do not often see the noble Lord, Lord Berkeley, who rides with great skill and speed. He even has special gears fitted on his Brompton folding bicycle so that he can move rapidly down Birdcage Walk or wherever he is going. I have a standard machine which I put in my car when I go away. Like the noble Lord, Lord Haskel, I travel to France; when I do, I put the bike in the back of the car, as I did last year when I went to the San Sebastian film festival. San Sebastian, besides hosting a lovely film festival, is a remarkable place. It was the pioneer city in Spain for cycle lanes. Quite apart from being the most beautiful belle époque city, it looks after cyclists. The way in which cyclists are treated by all other road users is exemplary. When you come back to London, you are back in the jungle again.
	The Government could do various things. It is all very well having a policy, but you have to have the political will to make the policy work. Cycling is very good for families. A lot of young people today are overweight or even obese, so parents would like to get their children on to bicycles. At the weekends in London—it is a curious thing—in lots of areas the cycle lanes are full of parked cars. This is the fear factor again: why would you take out two small children in a crocodile on your bicycle at the weekend or on a summer's evening when you must negotiate cars and vans parked in the cycle lanes? I am quite sure that the Minister would tell us that that is all to do with law enforcement and that the law is there to stop that happening. Well, why does that not happen? The cycle lane situation in London is pretty strange and illogical anyway. For example, on Chelsea Bridge, which I frequently go over, bicycles can go one way on the footway on the edge of the bridge, but they cannot go the other way. If you attempt to do so, as I have done from time to time, not only are you likely to be stopped, but you meet angry ladies walking their dogs saying that you ought to know better. That is a disagreeable experience for sensitive parliamentarians.
	In the investigations that I carried out before speaking tonight into opinions around the House, particularly those of my colleagues, I thought of two cyclists. My noble friend Lord Taverne is still cycling; I would put him forward as a candidate for one of the best preserved and most athletic Members of your Lordships' House for his age. He cycles every day and included cycling in his 2005 book—I admit that I have not read it—The March of Unreason, which is available in paperback. There is an examination in it of the benefits to your health set against the dangers of cycling within metropolitan London. Despite all the things that we are saying, it came out in favour of the benefits by a ratio of 10:1. I think that the Government can help us to increase that ratio. The book describes the cycle, rather amusingly, as,
	"a green car that runs on tap water and toasted teacakes and has a built-in gym".
	If that whets the appetite of noble Lords who want to find my noble friend Lord Taverne's book, I daresay that it is in the Library; they will be cheered by what they read.
	Various other aspects of cycling that create problems for cyclists have already been mentioned, such as the business of theft, of course. You almost write down your bike because you know that it will be stolen if you are not careful. If you leave a folding bicycle—such as a Brompton, as is owned by the noble Lord, Lord Berkeley, and me—outside for two minutes you are at risk, so you carry it into shops with you. You carry it everywhere. People are very understanding about that, although it is often a bit of a squash in a small tobacconist's where you are looking for the MotorCycle News, which is often what I am doing. But you have to do it, otherwise you run that risk. They are expensive items to replace.
	The success of the French system is amazing. I was in Paris during the rugby cup and saw at close quarters how their pool system, which started in Lyon, works. You pick up a bike on a card system where the first half-hour is free and you pay €7 for each subsequent hour or two hours. It is not cheap, but the bikes are very high quality; I examined them closely. They are now used widely. The system also means that people, visitors and locals, use these bicycles on a regular basis. Some of them are not very experienced and they wander around the roads in a way that would shock experienced cyclists in your Lordships' House. To motorists it is a salutary lesson: you must give cyclists a wide berth. In any case, there are draconian sanctions in France against cars that are seen to be a menace to cyclists. If you hit a cyclist, you can get your collar felt, to use the vernacular. That does not exist here. There is definitely room for improvement. The contrast with Europe must be looked at; we have many lessons to learn.
	The main points for the Government—and I would be interested in the Minister's remarks when he replies—are that we must alter the law to give more protection to cyclists from vehicles of all kinds if we want to support the Government's excellent initiative. We must revisit the design of cycle lanes and see whether they are logical. We must improve them where possible. We must deal with the potholes, which the noble Lord, Lord Young, has described; they are an absolute menace and a disgrace. I would not expect to find them in Entebbe or Dar es Salaam. I never rode a bicycle in those places, but many of the roads here are shocking.
	Will the Government think of devising a promotion scheme to back up their policy which explains the benefits of cycling clearly and positively, whether in leaflets or posters? It should not cost too much. Will they also stress cyclists' responsibility for the consideration that they get from other motorists? It is terrifying that any cyclist should go out without lights at night. He is putting at risk not only himself but other people who are driving cars and other vehicles. He may be in a position of facing homicide charges. That is utter selfishness and should be dealt with harshly.
	I am over my time but, before I sit down, let me say that nobody has mentioned bells. I do not have one, but now that I have reminded myself I will go out and get one. In London, we ought to encourage cyclists to use a bell, so that they can shift these pedestrians out of the way before you arrive and they abuse you. I thank the noble Lord, Lord Berkeley, for giving me a chance to speak on this subject. I could not get in on a Question the other day; the matter has been remedied.

Earl Howe: My Lords, it was HG Wells, that great enthusiast for the bicycle, who wrote:
	"When I see an adult on a bicycle, I do not despair for the future of the human race".
	HG Wells felt no need to apologise for his romantic view of two-wheeled transport, a view which may strike us as a little quaint; but he undoubtedly saw in the bicycle something that was noble and optimistic for humanity. Hence another of his observations, which I rather like:
	"Cycle tracks will abound in Utopia".
	Like many other noble Lords, I am sure, I am a great one for Utopia but, to get there, reality is the nut we have to crack.
	We have heard some of the evidence for the health benefits of cycling. They are impressive. We know that greater physical activity is directly linked to the prevention of a range of chronic diseases, including heart disease and stroke. On heart disease, it would appear that the older the participant, the greater the benefit. So, as the noble Lord, Lord Haskel, rightly said, it is never too late to start.
	Eight years ago, a study was published in Denmark involving thousands of cyclists. It showed that even after adjusting for other risk factors, those who did not cycle to work had a 39 per cent higher mortality rate than those who did. A study in Germany five years ago looked at the effect of cycling on breast cancer in pre-menopausal women and found a direct correlation between amounts of cycling activity and lower risk. Those cyclists who commute, say, for a 30-minute journey each way, are fulfilling the Chief Medical Officer's recommendation for daily exercise. You burn calories, you lose weight and you feel better.
	There has been a mass of studies about the benefits that would ensue to the nation if more people were to cycle regularly. Cycling England has translated those benefits into money terms. The savings to the NHS and the savings to traffic congestion amount to hundreds of millions. It has done similar calculations on the benefits to the environment. A 20 per cent increase in cycle journeys could mean 54 million fewer car journeys, which would reduce carbon dioxide emissions by 35,000 tonnes. That is a worthwhile prize in anyone's terms. The prize is proving elusive. In the national cycle strategy published in 1996, the previous Conservative Government made a rather bold pledge; to double the number of bicycle trips by the end of 2002 and to quadruple the number of trips by the end of 2012. Not only has this not begun to happen, but in 2005 the Government conceded in their White Paper that it was not going to happen and that the original target could not be achieved. How could they tell? It was easy enough, because the statistics were actually moving backwards.
	The frustrating part is that the present Government came to office and did many of the things that they needed to do to give cycling a real boost. They endorsed the previous Government's strategy, and they put in train some good initiatives at local authority level which, with a bit of a push from Ministers, should have gathered speed. But, somehow, the momentum was lost. That could not be more unfortunate in view of the public health imperative. We have a state of affairs in England, as noble Lords have referred to, in which almost a quarter of the population is obese and where rates of diabetes, to name but one serious medical condition, which has already been mentioned by the noble Viscount, Lord Falkland, look set to reach unparalleled levels over the next 10 years unless people start living healthier lifestyles.
	There has been much talk by Ministers of working more closely with local authorities,
	"to put in place sharper, more focused local plans and targets",
	which was in the White Paper. Despite all that, rates of cycling have actually fallen from where they were a decade ago by about a fifth and stand at just 1 per cent of all journeys. The number of 11 to 15 year-olds cycling to school has also gone down very considerably in the past 10 to 12 years. How the Government have allowed that dismal situation to come about is not particularly difficult to diagnose; they took their eye off the ball. They did not manage to hold local authorities properly to account for delivering on the targets. The ball was picked up again in 2005, when Cycling England was created and when Sir Ron Eddington was asked to carry out his transport study, which contained a number of useful conclusions for cycling policy. But even today, progress around the country, with the signal exception of London, has been very limited indeed.
	That is not to say that it was ever going to be easy. When my noble friend Lady Chalker was transport Minister in the 1980s, she made the profound observation that the best encouragement that we could give to cycling would be to make it safer. There is no doubt, as the noble Lord, Lord Berkeley, said, that worries about road safety are a major reason why people do not use their bikes for commuting and other short journeys and why parents will not let their children cycle to school. Although the number of non-fatal casualties has gone down by about a third over the past 10 years, the number of fatalities has been rising since 2003, despite the background of fewer cycle journeys. We are still talking about more than 16,000 cyclists a year being involved in road accidents; but it does not have to be like that. The experience in London over the past few years shows that, with a bit of careful investment, the accident rate can actually come down, even when the amount of cycling goes up; as it has done quite dramatically. Someone writing in the New Yorker magazine described cycling in the city as, "anarchy without malice". There may well be a bit of anarchy around, but it does not seem to be responsible for much of the road casualty figures.
	The other main barrier to progress is perhaps less easy to overcome. There is an inherent problem with cycling; it is not exactly "cool". It will probably not be seen as cool until we have role models who promote it in a way that resonates with those disadvantaged groups in society who most need to get on their bikes. At the moment it is the relatively affluent and educated sections of society who cycle, and we need to get the message to those at the opposite end of the social spectrum.
	Earlier this year Ruth Kelly announced a really welcome boost for cycling in the form of a grant of £140 million to Cycling England over the next three years. That decision gives me cause to hope that, after all, the Government have not entirely given up on the target set by the previous Conservative Government. But money like this needs to be properly targeted if it is to achieve its purpose. How is it likely to be spent, what achievement from it may we hope to see and over what timescale?
	Perhaps I could put one or two ideas to the Minister as a small contribution to his deliberations. Cycling England and other bodies all agree that the best benefits to health, as distinct from all the other benefits, come from persuading older people to cycle. One way to do that could be to promote the use of electric bicycles. Unfortunately, however, there is a problem with electric bicycles. I wonder whether the Minister is aware that the present law is seen as being confusing and somewhat arbitrary because it would appear to include some electric bikes within the definition of "bicycle" but not others. Would he consider clarifying the law so that all electric bicycles, including the so-called "twist and go" variety, are classified as bicycles and not as motor vehicles?
	My second proposal is one that the Government could consider encouraging among local authorities. As noble Lords have said, cycling could play a major role in our efforts to reduce traffic congestion, particularly in some of our larger towns and cities. Has the Minister considered copying some of the best practice on the Continent, such as the Vélib initiative in Paris? I understand that there are now more than 700 pick-up and drop-off points where bicycles can be rented free for the first half-hour and for very little thereafter, and then can be dropped off at any of the other points in the city. It is one of the initiatives that my honourable friend Mr Johnson has promised to introduce, should he be elected as Mayor of London, but it is clear that it is an idea that could be rolled out in other cities.
	I hope that after a decade of disappointment we will now start to experience the fruits of the Government's renewed good intentions in a way that HG Wells would have approved of, and that both our environment and the health of the nation will be the joint beneficiaries.

Lord Bassam of Brighton: My Lords, although there have not been many participants in this short debate, it has had some high quality contributions. I congratulate not only the noble Lord, Lord Berkeley, who is a keen advocate of cycling, but all those who have taken part. We do not spend enough time talking about issues such as this. That reflects that it has been neglected—not by the Government, I hasten to add, but more generally—to acknowledge and celebrate the merits of cycling in our culture. It is only a generation ago that probably most people cycled to work, to their factory or their office.
	I grew up in the flatlands of Essex and cycled every day, and so did those I grew up with. It was part of how you were. Much as we talk now about the contribution that cycling can make to reducing our carbon footprint and tackling the obesity timebomb, my generation did not see it that way at all—we just thought it was a fun thing to do. Acquiring the skills of cycling was part of growing up.
	I assure the House and the noble Earl, Lord Howe, that the Government are fully signed up to appreciating and promoting the health and environmental benefits of cycling. Indeed, our support for and funding of Cycling England, which has its own appointed experts in health and environment on its board, in 2005 to assist in formulating programmes to give life further life to a cycling strategy is clear evidence of that. In October 2007 the Government published Towards a Sustainable Transport System, which responds both to the Eddington study on the transport contribution to improving economic growth and productivity and to the Stern review on reducing carbon emissions. Meeting the transport needs of a modern economy while delivering those important CO2 reductions is a challenge, but not an insuperable one. Cycling is an important alternative to the car and one of the key low-carbon transport options we will need to employ in meeting the climate change challenge.
	On top of that, as all noble Lords who have contributed to the debate have observed, there is the challenge of the obesity timebomb that the Foresight report highlighted. That has been responded to by the Healthy Weight, Healthy Lives cross-government strategy for England. It is clear that cycling can offer a significant contribution to addressing all these challenges and, through government departments working together and recognising our shared objectives, we have already started to deliver on the plans set out in Towards a Sustainable Transport System.
	In January this year, we awarded a record £140 million to Cycling England after considering its already notable achievements and upon the evidence in a report by the economic consultants SQW on Valuing the Benefits of Cycling. This provided evidence of a 3:1 benefit, much of which relates to health and the environment. The noble Lord, Lord Young, observed the benefit of that cost-benefit ratio in those terms. The six-fold increase in Cycling England's budget is further evidence of the Government fully understanding and accepting the case put forward by Cycling England and others interested in promoting greener travel options. As part of a joined-up approach, the Department of Health is contributing £15 million towards cycling, demonstrating its recognition of what cycling can do to improve the health of the nation.
	So what are we planning to do with the additional funding? That is the question asked by the noble Earl, Lord Howe. The first aim is to give children an opportunity at an early age to set a blueprint for life. These primarily have to be good health and a recognition of the importance of the environment. With Cycling England, we have pledged to give an additional 500,000 schoolchildren the opportunity to undertake high-standard on-road cycle training, to address some of the issues that the noble Viscount, Lord Falkland, drew attention to, of core practice among cyclists. We have agreed also to provide 250 additional links to schools, connecting 500 schools via traffic-calmed or traffic-free routes, in addition to the 295 links already provided to over 600 schools since 2005. We have also agreed to double the number of "cycling to school champions" to work with around 400 schools, to maximise the benefits of these combined programmes. We are therefore giving the next generation the skills to improve their health and providing improved infrastructure to ease parents' understandable fears over allowing their children to cycle to school. It will also give children greater independence while at the same time reducing the need to ferry children around by car.
	Cycling England announced in February £47 million to extend the Cycling Demonstration Towns programme, including creating the first large cycling city. Existing demonstration towns such as Darlington, where the numbers of those cycling to school has quadrupled, and Aylesbury, where the number of people saying that they are using a bike as one of their main modes of transport has risen from 3 per cent to 14 per cent, demonstrate to all what local authorities can achieve. This investment will provide around 3 million people with levels of spend on cycling seen only in the very best European cycling cities.
	The assessment criteria for the new demonstration areas includes the requirement for local authorities to show how their bids contribute to the aims of the Healthy Weight, Healthy Lives strategy and to think strategically across all departmental remits, such as environment, transport, education and health, and most importantly to show high level leadership and commitment. Cycling England, together with the Department of Health, are already working with two primary care trusts in Nottingham and Northamptonshire in the Community Health Improvement programme. By working with staff and those most at risk to poor health, such as the middle-aged and deprived communities, through cycle training and cycle rides they will be able to demonstrate to other care trusts what can be achieved.
	Cycling England also published Cycling and Health in 2007 and distributed it to local authorities and primary care trusts, which provides all the evidence in one document, with some practical ideas on how the two can work together. It does not end there. We have given Cycling England a remit and funding to find new solutions to encourage adults and at risk groups to cycle more, particularly for the journey to work and through leisure.
	On the topic of the journey to work, the Department published guidance on the Cycle to Work scheme in 2005 and at the same time negotiated a group consumer credit licence to ease the burden upon business in setting up the scheme. Since then, around 100,000 people have participated.
	In addition to our work with Cycling England, our successful initiative Sustainable Travel Towns is entering its final year of a five-year project and has so far seen a 10 per cent reduction in car trips and around a 30 per cent increase in cycling. That is on a target population of more than 180,000 people. The main tool used to achieve that is personalised travel planning, and I would like to point out this is not a "nanny state" intervention on how people should travel, but provides tailored information to enable people to make voluntary alternative travel choices to the car.
	A trial in one of the towns, Peterborough, showed that in a three-mile rush hour trip into the city centre, the cyclist took 15 minutes, had free parking and took some exercise burning off around 200 calories, while the car driver took 22 minutes, had to pay for parking let alone fuel and running costs and of course had no exercise. Providing that kind of tailored information can motivate people to make cycling the preferred option, especially in an urban environment.
	We recognise that we must improve cycling facilities in order to tempt more people to take this option. We are doing precisely that through Cycling England's free advice service to local authorities on the design of cycling facilities and through guidance such as the Manual for Streets, which promotes the highest priority to be given to pedestrians and cyclists in the design of residential streets.
	Finally, the Government implemented the local transport plan process in 2000 to enable local authorities the opportunity to develop their transport priorities and recognise that we share some, such as reducing congestion and improving air quality. Through that process we have asked local authorities to develop a cycling strategy as it can clearly contribute to improving not only people's health but the environment. Enabling local authorities to recognise their priorities has since been strengthened through the second local transport plans and local area agreements.
	In summary, Cycling England's programme and other initiatives such as Sustainable Travel Towns have given insight and inspiration to all local authorities as to what can be achieved in terms of improving health and contributing to a better environment, while the local transport plans and local area agreements provide a framework for them to achieve precisely that.
	Some of the contributions this evening were truly inspirational. I certainly cannot match the exploits of the noble Lord, Lord Young, with his trip from Land's End to John O'Groats. If someone in your Lordships' House is giving a lead and showing himself to be a role model, the noble Lord, Lord Young, is the number one candidate. He has done his bit for the environment.
	The noble Viscount, Lord Falkland, has done his bit for health. His was a wonderful practical example of how one person can adjust their lifestyle to improve their life expectancy. The noble Viscount is willing and more than capable of picking up that baton and also receiving a prize. I also congratulate the noble Earl, Lord Howe, on his contribution in terms of adding to our wisdom on the subject and making the links with health. He also asked two very good points, one of which I shall follow up—he made an interesting technical point about the position of electric bikes. I have heard that before, but I shall write to the noble Earl about that.
	Like the noble Earl, I, too, am attracted by the pick-up and drop-off schemes. I will not become an advocate of Boris's mayoral candidacy, but I know that our good friend Ken Livingstone, with his the big injection of funds for cycling in London is more than his equal to claim to be the cyclist's friend. Ken recently committed to pick up on all good ideas, and we will see that as being one of the most urgent to assist with after the outcome of the mayoral elections is secure. I congratulate all noble Lords who have participated. I have greatly enjoyed this debate and if we can spread a little more sunshine in the world of the cycling fraternity then we will do your Lordships' House and the nation a good service.

Criminal Justice and Immigration Bill

Further consideration of amendments on Report resumed on Clause 13.

Lord Lloyd of Berwick: moved Amendment No. 53:
	Clause 13, page 9, line 42, leave out "two" and insert "four"

Lord Lloyd of Berwick: My Lords, in replying to the previous debate the Minister asked what it was we were trying to do. I am quite clear what I am trying to do, which is to prevent the crisis in prison overcrowding from getting worse than it already is. For that purpose, we must confine the indeterminate sentence to those who have committed really serious offences. That means offenders who are serving a tariff of four years or more; anything less than that will achieve nothing. The Government will just be driven from one expedient to another as the overcrowding gets worse.
	Of course it is a question of judgment, as the noble Lord said, but the Government's judgment in this area has not proved very successful in the past; otherwise we would not be in the current position. When he replies to what further debate there will be—I do not suppose that there will be further debate—I hope that he will explain why, in the Government's view, two years will be enough to solve the problem. Perhaps he will give some indication of why he takes that view. I beg to move.

Lord Thomas of Gresford: My Lords, in the reply to the previous debate the Minister confused me a little when he said that two years is four years. As I understand it, the condition in the Bill is that the notional minimum term is at least two years. That is defined in proposed subsection (3C), which states:
	"The notional minimum term is the part of the sentence that the court would specify under section 82A(2) of the Sentencing Act (determination of tariff) if it imposed a sentence of imprisonment for public protection but was required to disregard the matter mentioned in section 82A(3)(b) of that Act (crediting periods of remand)".
	I do not know where this two years means four years comes from. It does not seem to come from that wording—but I must confess that I have not, in the 55 minutes that we were permitted for our dinner tonight, had the opportunity of looking at the sentencing Act to clarify my mind on the matter. No doubt the Minister can do so.

Lord Hunt of Kings Heath: My Lords, I am sorry about the 55 minutes, although, as my noble friend Lord Bassam was so eloquent in responding to the riveting debate on cycling, I think that we did get our hour.

Lord Kingsland: Not entirely at the dinner table, my Lords.

Lord Hunt of Kings Heath: My Lords, that is a fair point. We shall seek to compensate noble Lords at another stage of our consideration of the Bill.
	I thought that we had discussed this issue, but we are coming back to it. I understand why the noble and learned Lord, Lord Lloyd, spoke very briefly to it. Two years is the actual custodial time. That would apply to both indeterminate sentences and extended sentences. I hoped that I had made that clear when I responded to the noble and learned Baroness, Lady Butler-Sloss.

Lord Thomas of Gresford: My Lords, it still does not explain the notional minimum term as it is positively defined in subsection (3C) on page 10. What you are disregarding is crediting periods of remand. If the threshold is the equivalent of a sentence of four years, which the Minister said it was, I want to know why.

Lord Hunt of Kings Heath: My Lords, can the noble Lord explain why he wants to know why? Does he not follow the provision or does he disagree with it?

Lord Thomas of Gresford: My Lords, the Minister said that we have a threshold of two years but that really means four years. So if you want a threshold of four years, you mean eight. I do not follow that. That may be my fault; it probably is.

Lord Hunt of Kings Heath: My Lords, two years equates to a headline sentence of four years. That is the position. If there is a difficulty with the way in which this is expressed, I am happy to follow it up in writing to the noble Lord, but my understanding is that that is what is intended by this provision.
	The answer to the noble and learned Lord, Lord Lloyd, is really the one that I gave earlier, which may not have satisfied him. We think that a four-year sentence is about right. It would be unusual to receive a four-year sentence for a trivial offence. We are attempting to strike a balance between ruling out cases that are simply not serious enough to be considered in this light and allowing the courts, as I said, to detain very worrying offenders, even if their immediate offence is not so serious as to deserve an extremely weighty sentence. I know that the noble and learned Lord, Lord Lloyd, went on to describe the potential problems that he saw with persons sentenced under those provisions given the pressures on the Prison Service. I understand that, but the Government have taken, and are taking, steps, as I described earlier, to increase the resources and the priority that are given to the programmes that need to be established to enable these prisoners to satisfy the requirements of the Parole Board. That is in addition to the more general expansion in prison places in line with the Carter recommendations.
	We think that the figures add up, given the provisions being introduced under the Bill. The answer is twofold. First, we think that a headline sentence of four years is about right. Secondly, given that and the other measures to reduce certain sections of the prison population—as the Bill does in a number of ways—and the increase in the resources and the priority that are given to the appropriate offender management programmes, we will be able to meet our aims.

Lord Lloyd of Berwick: My Lords, I am grateful to the noble Lord, as one always is. But surely the purpose is not just to exclude trivial offences from the ambit of indeterminate sentences, as the noble Lord said. We must go further than that if we are serious about reducing prison overpopulation. Nothing less than a four-year measure will do that, whether it be four years as the tariff or two years as the tariff—I entirely agree that there is confusion about that. I have tried to work out what the two-year measure actually means: whether it is the equivalent of four years less a 50 per cent reduction—because, as we know, all sentences of a certain kind are reduced by 50 per cent—or whether it means two years literally. We must come back to that. I am afraid that I am not satisfied that merely excluding trivial offenders will make any difference at all to the present problem.
	I was slightly taken by surprise when the noble Lord, Lord Bach, moved to adjourn. It would have been more sensible if we had taken a decision on this question immediately after the other decision that was taken, but we did not. In those circumstances, I will bring the matter back at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Schedule 5 [Offences specified for the purposes of sections 225(3A) and 227(2A) of the Criminal Justice Act 2003]:

Lord Bach: moved Amendment No. 54:
	Schedule 5, page 186, line 4, at end insert—
	"Part 5Interpretation
	53 In this Schedule, "imprisonment for life" includes custody for life and detention for life."

Lord Bach: My Lords, before I speak to the amendment, I apologise to the noble and learned Lord. It was agreed through the usual channels that the previous grouping would be the last before dinner. I mentioned that to some of his colleagues on the Cross Benches, but I am sorry that I did not mention it to him. We were already running well after 7.30 pm when the previous grouping concluded. I apologise. I should say also that we had 57 minutes for dinner—from 7.58 pm to 8.55 pm. I am sorry that we did not have the full hour.
	Amendments Nos. 54 and 56 relate to provisions that disapply the threshold test for public protection sentences when an offender has certain very serious convictions, which are listed in new Schedule 15A to the Criminal Justice Act 2003 to be inserted by Schedule 5 to the Bill. It has always been our intention that this approach should apply equally to offenders who are liable, due to their youth, to a maximum penalty of detention for life or custody for life, rather than imprisonment for life. We have noted, however, that some of the listed Schedule 15A offences relating to sex offences are identified with reference to the term "imprisonment for life". In order to prevent any doubt that those offences also cover offenders who, due to their age, were liable to detention for life or custody for life, rather than imprisonment, we are inserting an interpretive provision to address that point. Amendment No. 56 to Clause 15 simply removes a redundant word. I beg to move.

On Question, amendment agreed to.
	Clause 14 [Sentences of detention for public protection]:
	[Amendment No. 55 not moved.]
	Clause 15 [Extended sentences for certain violent or sexual offences: persons 18 or over]:

Lord Bach: moved Amendment No. 56:
	Clause 15, page 10, line 34, leave out "previously"
	On Question, amendment agreed to.
	[Amendment No. 57 not moved.]
	Clause 16 [Extended sentences for certain violent or sexual offences: persons under 18]:
	[Amendment No. 58 not moved.]
	Clause 17 [The assessment of dangerousness]:

Lord Lloyd of Berwick: moved Amendment No. 59:
	Clause 17, leave out Clause 17

Lord Lloyd of Berwick: My Lords, Clause 17 amends Section 229 of the 2003 Act, which is a key to this group of clauses. It contains the Government's definition of dangerousness, which, as anyone who has had anything to do with dangerousness will know, is an extremely elusive subject.
	Under Section 229 as it stands, the court is bound to assume dangerousness in certain circumstances. That is the effect of subsections (3) and (4) of that section. I need not go into details on that. It is a good example of the Government's determination back in 2003 to impose their will on the judges. But subsections (3) and (4) are now to be repealed—that is a good thing, too. Instead, we are left with subsection (2). All that it does is to say that the court must take account, when assessing dangerousness, of,
	"such information as is available about the nature",
	of the offence and that it may take account of any information about the offender, including any previous convictions.
	I have to ask whether the Government really suppose that judges have not always taken previous convictions into account when assessing dangerousness. Of course they have. What, then, is the point of telling judges that they may do what they have always done? If Clause 17 passes into law, Section 229 will serve no purpose at all. The Government's attempt in 2003 to define dangerousness has failed and they should recognise that fact. I hope that between now and Third Reading saneness will prevail. There is simply no point in maintaining the shadow of the old Section 229 on the statute book. It should be repealed forthwith. I beg to move.

Lord Bach: My Lords, I am delighted that the noble and learned Lord is pleased that we have butchered Section 229 to the effect that he wanted. He argues—as always, with great persuasiveness—that, having butchered it, there is nothing left. Perhaps I may argue that there is something left and that it is important to leave it in the statute. I shall do so as briefly as I can.
	Without Section 229, the courts would have no statutory framework at all for making an assessment of risk. They would have no specific entitlement not just to look at the circumstances of the trigger offence but also to take account of all such information as was available about the pattern of behaviour of which the offence formed part. That is a matter of particular relevance to a court which has a special responsibility for assessing an offender's prospective dangerousness and it is a hallmark of public protection sentencing.
	I hope that the noble and learned Lord will not mind my citing the case of R v Considine, which I am sure he knows extremely well. The reference is Court of Appeal, 2008, Volume 1 of the Weekly Law Reports, page 414. In it, a strong court of five judges had to decide issues surrounding the use of information that was not proven evidence but related to what information a court could use in making its assessment of risk. In that case, the Court of Appeal dismissed an appeal against an IPP given to an offender for making two threats to kill and having a knife in a public place. The question on appeal was whether the assessment of dangerousness for the purposes of Sections 225 to 229 had been based in part on inadmissible material.
	The court noted that Section 229 specified that the court may take account of any information before it about the offender. It also noted that similar language is used in Section 229(2)(b) and (c), which apply to persons with no previous convictions, and those two paragraphs would remain in Section 229. The court held that,
	"as a matter of statutory construction, relevant information bearing on the assessment of dangerousness may take the form of material adverse to the offender which is not substantiated or proved by criminal convictions".
	We do not agree with the suggestion that Section 229 is unnecessary and that courts would be entitled to look at all such information anyway. The information that a court can take into account is affected by the purpose for which the court is considering it.
	The Court of Appeal interpreted Section 229 and the special public protection policy function that it serves. It held that the sentencing judge was entitled to take into account information that would have been excluded if he had been considering the punishment element of the sentence to be imposed. When assessing the risk of dangerousness, the court does so not for the sake of punishing the offender but for the purpose of protecting the public by determining whether the offender is dangerous and thus potentially liable to a public protection sentence. We argue that this policy dimension is served by the language that remains in Section 229 and that it should be maintained.
	I take the point made by the noble and learned Lord about previous convictions. We think that there is an advantage in making it clear to criminal justice agencies and to the general public, if not to learned judges, that previous convictions are, of course, very relevant to the assessment of risk. We believe that makes it transparent and encourages confidence. I rely, in arguing with the noble and learned Lord, on the information parts of Section 229(2); in other words, new subsections (2A) and (2)(aa).

Lord Thomas of Gresford: My Lords, has there been a challenge to the Court of Appeal decision to which he refers, either in the House of Lords or the Court of Human Rights?

Lord Bach: My Lords, I am afraid I do not know the answer to that question. The case was heard on 2 May. I now know the answer and there has been no challenge to the judgment of the court.

Lord Lloyd of Berwick: My Lords, I am grateful to the noble Lord. I shall look at the case to which he has referred. It is important for the House to appreciate that the courts have been passing life sentences for the protection of the public for as long as I can remember. They have never needed any statutory authority to make an assessment of dangerousness. Clearly established in all the textbooks is the fact that a life sentence for the protection of the public can be, and always has been, capable of being passed on three conditions: first, that the offence was one which of itself carried the maximum sentence of life imprisonment; secondly, that the particular offence was itself sufficiently grave to justify a very long sentence; and, thirdly, necessarily, that the court had to be satisfied from the offender's criminal record, from his past history or from any relevant medical evidence that he was a grave danger to the public. No statutory authority was required for that. That is what the courts have always done. That is why I suggest that Clause 17 now serves no conceivable purpose other than stating what the courts already do, but I shall certainly look at the case that has been referred to.

Lord Bach: My Lords, the noble and learned Lord says that Clause 17 serves no useful purpose. Does he mean Section 229?

Lord Lloyd of Berwick: My Lords, I am so sorry, of course, Section 229. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 19 [Indeterminate sentences: determination of tariffs]:

Lord Lloyd of Berwick: moved Amendment No. 60:
	Clause 19, leave out Clause 19

Lord Lloyd of Berwick: My Lords, at Second Reading, the Minister exercised a very wise discretion in not attempting to explain what Clause 19 is all about. I have read it many times and I am still not sure that I understand it. As one does in such circumstances, I turned to the Explanatory Notes, which say that under this clause the judge must distinguish between three things: first, serious offences; secondly, exceptionally serious offences; and, thirdly, offences with,
	"a very extreme degree of exceptionality".
	Those are the very words that one finds on page 38 of the Explanatory Notes, which explain the need for the clause.
	The judge is required to identify something which is exceptionally exceptionable, to use a phrase used by Mr Garnier in the other place. When judges are required to do such things, does that not illustrate what a quagmire we have got into when Parliament takes a hand in sentencing? When I became a judge 30 years ago, sentencing was difficult, as it must always be, but at least there was a framework which we could all understand. Now sentencing has become a nightmare: it is a nightmare for counsel; it is a nightmare for judges; and it is a nightmare for which Parliament must take a very large share of the responsibility. Clause 19 is a good example of the kind of nightmare in which we all now get involved.
	The purpose of Clause 19, so far as I can ascertain it, is to provide for two types of case which are, on any view, likely to arise only very rarely in practice. I will not attempt to describe them, but leave it to the Minister when he replies. The one thing of which I am absolutely sure is that, by enacting Clause 19, we are only going to make the nightmare worse. We will provide yet more opportunity for judges to slip up—heaven knows there are enough opportunities for that already—and more opportunities for appeals to the Court of Appeal.
	When the present Prime Minister was Chancellor of the Exchequer in 1997, his first act was to abandon any attempt to micromanage the rate of interest. He wisely handed that over to the experts at the Bank of England and was much praised for doing so. I respectfully suggest that he now do the same for sentencing. Why does he not accept that the judges are the experts here, guided as they are by the Sentencing Guidelines Council, set up under the 2005 Act, and decisions of the Court of Appeal? Of course, Parliament has a role to play in the broad field of sentencing—there is no doubt about that—but nobody could justify Clause 19 on the ground that it deals with broad grounds of sentencing policy.
	The experience of the 2003 Act shows what happens when Parliament tries to micromanage sentencing. It is high time that it showed some abstinence in sentencing, and we should make a start now by throwing out Clause 19. I beg to move.

Baroness Butler-Sloss: My Lords, I strongly support the observations of the noble and learned Lord, Lord Lloyd of Berwick. When I read the clause—I had to read it several times and I still do not really understand it—I heaved two separate sighs of relief: first, that I was not a criminal judge, and secondly, that I had, thank goodness, retired. That is because it is a nightmare, if I may be blunt. There is no need to micromanage the exceptional cases that the noble and learned Lord, Lord Lloyd of Berwick, spoke of and every reason to leave this area to the judiciary. The clause should be got rid of as quickly as possible.

Lord Mayhew of Twysden: My Lords, it is quite unnecessary for me to add anything to what the noble and learned Lord, Lord Lloyd of Berwick, has said, but I cannot resist it. We learn from the world of education that examinations have become increasingly a matter of ticking boxes, or not allowing answers to be given in free style. This clause is a product of that kind of culture. It requires the judges to tick boxes when reviewing the ingredients for a sentence. Those ingredients are infinitely variable from case to case and do not lend themselves sensibly to the exercise of ticking boxes. When the Minister winds up, which he will do in about 30 seconds so far as I am concerned, I hope he will identify the deficiency in the current practice of the judges that in the minds of the Government make this clause necessary.

Lord Thomas of Gresford: My Lords, I associate myself with those remarks. This is labyrinthine, if I can use another metaphor. It can have the result that happened in Cardiff when a Crown Court judge of great experience—the Recorder of Cardiff, who has since been made a High Court judge—followed previous directions of this nature to the letter and was criticised for his sentence by the Home Secretary and, as I recall, the Prime Minister, who simply did not understand the nature of the legislation that their own Government had passed. One can see that so readily happening here when the noble Lord, Lord Hunt, may be called upon in the Ministry of Justice to criticise a judicial decision when somebody is simply following the maze that he is creating.

Lord Hunt of Kings Heath: My Lords, I will not do that because it is not the Ministry of Justice's intention to do so. Whatever criticism may be made of the Government or my department, my right honourable friend the Lord Chancellor has clearly signalled his intention to work hard to establish the right and proper relationship with the judiciary. Thinking back to his appointment last summer, I do not think there has been one instance when he has criticised the judiciary. That signals the intent.
	I gather from noble Lords that they do not like this clause. I recognise that there is the question of what is in the clause and the more general question about judicial discretion. I shall deal with the clause first and then come on to the important question of the right relationship between Parliament and the judiciary, which has been at the heart of a great many of our discussions tonight and during other stages in the Bill.
	This clause is designed to give courts wider discretion to set suitably high tariffs for offenders who have received a life sentence for a particularly serious crime. I should emphasise, as other noble Lords have done, that it is intended to apply to exceptional cases only rather than to routine life sentences. It will apply where an offender receives a discretionary life sentence; that is to say, any life sentence other than a life sentence imposed for murder under the provisions of the Criminal Justice Act 2003. It will not apply to sentences of imprisonment for public protection; that is to say, indeterminate sentences.
	Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 specifies that when setting tariffs for discretionary life sentences, courts shall take into account the seriousness of the offence, remand time and early release provisions for determinate sentences. There has been concern that that results in a method of calculating the tariff that can undermine public confidence because the courts determine the punishment part or tariff of the life sentence by using the appropriate determinate sentence as a starting point, which is then halved to take account of the fact that an offender with a determinate sentence will be released on parole at the halfway point of the sentence. This exercise in some very serious cases can seem to result in what appear to be disproportionately short tariffs. An example is the case of Sweeney. Sweeney was sentenced to life imprisonment for the offences of kidnap and sexual assault of a child under 13. Following the usual calculation, his tariff amounted to six years.
	This clause will mean that where a particularly serious crime has been committed by a person over 18, judges will be able to calculate tariffs without taking into account the parole arrangements that apply to standard determinate sentences. Under the current law they must do so, which means that the final tariff is assessed as half of what the full determinate sentence would be. This clause—the Case A—allows the court to apply some reduction less than 50 per cent or to make no reduction at all, as appropriate in the particular circumstances of an individual case. The Case B element of this clause reflects case law and allows a court to apply a smaller reduction to the tariff, though not less than one-third.
	The exceptional cases to which this is relevant have historically been ones where an offender already serving a determinate sentence is sentenced for another offence to an indeterminate sentence. For technical reasons, the tariff of an indeterminate sentence should not run consecutively to the tariff of a determinate sentence, but, for reasons of justice, it may be important to ensure that the later offence will result in the prisoner serving extra time in custody. Case B is simply to maintain case law; it brings nothing new to sentencing practice. It is Case A that introduces the new discretion for exceptionally serious cases. The Government believe that the clause will meet a gap in the current law where the type of sentence that would normally be imposed on a determinate basis would not be adequate.
	I fully accept that that refers to cases in exceptional circumstances. I also understand concerns raised by noble Lords that Parliament should not seek to micromanage the performance of the judiciary, in whom we have great confidence or, as the noble and learned Lord, Lord Mayhew, said, go towards a tick-box approach. That is not our intent at all.
	I agree with the noble and learned Lord, Lord Lloyd, when he says that it is Parliament's duty to accept the broad parameters under which the courts work by legislation and then for the judiciary to have discretion within that framework, and to have regard to judgments given by superior courts and the guidelines issued by the Sentencing Guidelines Council—which, as noble Lords know, is an independent body chaired by the Lord Chief Justice. I also say to the noble and learned Lord that the Sentencing Commission Working Group published its consultation on establishing a structured sentence framework on 31 March. That arose from the Carter recommendations, which suggested that there was a need, in thinking through criminal justice policy in future, to ensure that all the relevant elements were brought together, so that there was consistency of purpose. I am sure that the noble and learned Lord will want to respond to that consultation.
	I fully accept that it is one thing for me to stand here and say that I agree with the noble and learned Lord that Parliament should set the broad framework and then we ought to allow the judiciary to get on with the job. He will then point me to legislation that he thinks does not meet the case. Of course there are instances of that. There will be reasons why Parliament seeks to be more precise in certain ways.
	It is interesting to look at our various debates so far. By my reckoning, noble Lords have argued against greater judicial discretion in about six or seven cases; whereas, in another five cases, noble Lords have argued for greater judicial discretion. In a sense, that is part of the parliamentary process: we tend to pray in aid whatever argument we can discharge to make the case for the point that we believe in.
	Although in general all noble Lords will sign up to increased judicial discretion, clearly, as legislation goes through, there are areas where they say, "On that matter, we do not think that there should be greater judicial discretion. We want to give a clear indication to the judiciary of what they should be doing". In our debates on youth justice, many noble Lords have been concerned that there is too much judicial discretion. We can see why Parliament is sometimes tempted to fetter the judiciary.
	I am not trying to excuse the Government from their responsibility to ensure that there is a proper balance between parliamentary direction and judicial discretion; I am trying to say to the noble and learned Lord that it is often easier said than done. The sentencing framework to which I referred and the consultation that has just been held will, I hope, provide us with a sensible way forward that meets the Government's needs and those of noble Lords who wish to reinforce the discretion of our excellent judiciary.

Lord Lloyd of Berwick: My Lords, again, I am very grateful to the Minister. I am afraid that even as he read the explanation of the clause, I was not sure that I altogether followed it, but we will all read it again.

Lord Hunt of Kings Heath: My Lords, I certainly offer to write to all noble Lords with a detailed explanation of the clause if that would help.

Lord Lloyd of Berwick: My Lords, I am sure that the first thing we will want to do is to read in Hansard tomorrow what the Minister said. That may shed some light on it. The mere fact that he has to offer to write to us shows that this is the sort of clause that should not be in legislation. It is intended to cover the appearance of injustice in only one case—the Sweeney case, to which the noble Lord, Lord Thomas of Gresford, referred—where there was no injustice at all because the judge did exactly what Parliament said he must do. It therefore illustrates both aspects of my argument. It is a marvellous example of Parliament interfering where it is not wanted. Parliament is now asked to give judges greater discretion, but the discretion should not have been removed in the first place. It is a very good example of Parliament interfering in such a way as to make the judges' task even more difficult than it already is. I hope that the clause will be considered for a second time in the Ministry of Justice. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland: moved Amendment No. 61:
	After Clause 19, insert the following new Clause—
	"Increase in maximum term that may be imposed on summary conviction of offence triable either way
	Section 282 of the Criminal Justice Act 2003 (c. 44) (increase in maximum term that may be imposed on summary conviction of offence triable either way) shall come into force on the passing of this Act."

Lord Kingsland: My Lords, after the extremely elevated tone of the previous debate, I almost hesitate to introduce this amendment. Nevertheless, I will introduce it. This is one of a family of issues which the Government advanced, I think, following the report of the noble Lord, Lord Carter of Coles, on Report in another place. I am not going to speculate on the reasons why a number of these measures were introduced; I am simply going to introduce my amendment, which I can do briefly as I did in Committee.
	I am asking the Government to insert after Clause 19 the following new clause, entitled, "Increase in maximum term that may be imposed on summary conviction of offence triable either way". The substance reads:
	"Section 282 of the Criminal Justice Act 2003 (c. 44) (increase in maximum term that may be imposed on summary conviction of offence triable either way) shall come into force on the passing of this Act".
	In other words, all we wish to do is to bring into law a matter which the Government always intended to bring into law as a result of the passage of the Criminal Justice Act 2003. The amendment would in effect implement a clause that originally appeared in the Government's Act. I am not sure why the Government have not yet implemented this clause.
	One of the factors that I think lay behind the Government's intentions in 2003 was a scheme called custody plus. We know that, for a variety of reasons, it has not been possible to introduce that yet. I would be interested to hear from the Minister what the Government's intentions were with respect to it. I have no doubt that factors such as resources, finance and so forth were part of the problem; but there may be other matters as well on which the Government will wish to dilate.
	Quite independently of custody plus, we think that, in itself, the substance of the proposal in the 2003 Act is inherently desirable. I suspect that the Government are trying to walk away from this because they fear that the consequence of it would be more people going to prison. I see no reason why that should be so. Magistrates have a sentencing structure in which to operate. In so far as I have had experience of watching magistrates' courts in operation, I have no doubt that they will abide by the appropriate guidelines in their sentencing policy. We think that this is an important power for magistrates to have. For that reason, I beg to move.

Lord Bach: My Lords, I am afraid that our position has not changed since we debated this in Committee. Section 282 of the 2003 Act was designed to enable magistrates' courts, as the noble Lord implied, to give custody plus sentences in respect of these offences. There has never been any intention to increase the sentencing powers of the magistrates' courts in this way as a freestanding measure. We have, as noble Lords by now will have gathered, no date for the implementation of custody plus. Let me be frank: it is a question of resources as much as anything else.
	As I explained, the increased custody limit would not actually result in any longer period of actual prison time under a custody plus sentence. Magistrates' courts would be able to impose 13 weeks for one offence, which is the same as the three months' prison time that they can currently give. We have never espoused the principle that the magistrates' courts should be able to hand down more actual prison time. It would mean more time for supervision under the custody plus measures.
	If Section 282 were to be implemented without the rest of the custody plus legislation—the noble Lord has made it clear that he thinks that there is merit in it in any event—the magistrates' courts could give 12 months' actual prison time for one offence. That would be a very substantial increase—a radical change—and an important alteration in our criminal justice institutions and principles. We do not think this is appropriate or necessary. Even at this late hour, perhaps I may pose a question to the noble Lord. What is the maximum total sentence that he is suggesting the magistrate should be able to pass in all, given that there might be consecutive sentences? If the maximum of each one can be 12 months, where does it end without custody plus?
	The magistrates' courts are lay courts, which do a wonderful job. They represent the community, but it has never been their role to deal with the most serious and dangerous offenders, who may require long custodial sentences. On a previous occasion, the noble Lord, Lord Kingsland, argued that it is logical for magistrates' courts to have increased powers in respect of triable either-way offences, as against summary-only offences. We do not agree. The logical position is that magistrates' courts and the Crown Court have their own areas of expertise, relating to the seriousness of the offending. The point about offences triable either way is that they can span a range of seriousness. At the lower end they are absolutely suitable for magistrates' courts to deal with and more serious cases are suitable for the Crown Court to deal with.
	Anyone who has practised in the criminal courts knows that magistrates' courts can and do send cases to the Crown Court for sentence if they think that the case is sufficiently serious and falls outside their sentencing powers. We do not believe that it can be argued that the proposed amendment is necessary to ensure that offenders receive their just deserts. As I assured noble Lords in Committee, Clause 53 will ensure that the power to direct is available undiminished under Schedule 3 to the 2003 Act when it is implemented. I hope that the noble Lord will consider withdrawing his amendment.

Lord Kingsland: My Lords, I do not blame him for it, but the Minister was extremely blunt in his opening sentence when he said that he had absolutely no intention of accepting my amendment. It may seem a minor matter when compared with many others that we have debated today, but we consider it to be an extremely important amendment. Given the unremitting way in which the Minister has responded, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 61) shall be agreed to?
	Their Lordships divided: Contents, 25; Not-Contents, 61.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Hunt of Kings Heath: My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.
	House adjourned at 10 pm.